VALUABLE PATENTS Allison et al
DRAFT
strengthen art units with a disproportionate number of valuable patent applications. 124 If the PTO focuses its resources on the patents that are most likely to matter in the real world, the promise of the patent value theory – that the patents that are most important also get the most scrutiny – can become a reality. 125
III..
Whose Patents Are Litigated The previous section focused on the characteristics of the patent itself. In this section, we
move up one level of generality, looking at who is obtaining the patents in our studies. We tested several different characteristics of patent applicants: whether they are foreign or domestic; whether they are corporations, governments or individuals; how many inventors were named on the patent; and whether the applicant claimed “small entity” status as either an individual, a nonprofit, or a small company. All of these factors differed significantly between litigated and unlitigated patents.
A.
Small Inventor Patents Are Litigated More
One of the most striking findings of our study is the prevalence of patents issued to individual inventors and small businesses in litigation. Patents originally issued to by individuals and small businesses were far more likely to be litigated than patents originally issued to large 124
Recent empirical work by Cockburn, Kortum & Stern has found substantial variation by individual examiner in the quality of patent examination. Iain Cockburn, Samuel Kortum & Scott Stern, Are All Patent Examiners Equal? The Impact of Examiners on Patent Characteristics and Litigation Outcomes, (working paper 2002); see also Dennis Crouch & Douglas Lichtman, Evaluating Patent Examiners: Evidence from Patent Prosecution, 71 U. Chi. L. Rev. __ (forthcoming January 2004) (same). This suggests that the PTO might try to concentrate important patents with better examiners, though Cockburn et al’s finding that examiner experience and workload don’t predict outcomes may make that hard to do in any systematic way. 125
One possible worry is that skilled patent lawyers could manipulate such a system to get more or less examination. That is not necessarily a bad thing, however, if the presumption of validity accorded those patents in litigation is tailored to how much examination the PTO actually did.
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