Patent examination outcomes and the national treatment principle

Abstract

One of the principles enshrined in all international patent treaties is that equal treatment should be provided to inventors regardless of their nationality. Little is known about whether this “national treatment” principle is upheld in practice. We analyze whether patent examination outcomes at the European and Japanese patent offices vary systematically by inventor nationality and technology area, using a matched sample of 47,947 patent applications. We find that domestic inventors have a higher likelihood of obtaining a patent grant than foreign inventors and that the positive domestic inventor effect is stronger in areas of technological specialization in the domestic economy.

The role of utility models in patent filing strategies: evidence from European countries

“…It is common practice among patent applicants to file the first patent application at the domestic 9 patent office and then continue to international protection routes, such as the EPO and the PCT (Dernis and Khan 2004;Frietsch et al 2013;Dechezleprêtre et al 2017). The patent application processes of national offices differ from each other (Webster et al, 2007;de Saint-Georges and van Pottelsberghe 2011;Webster et al 2014;Dechezleprêtre et al 2017) and some patent offices provide a menu of different types of patents for applicants (Heikkilä and Verba 2017;Heikkilä 2017;Heikkilä and Lorenz 2018). Thus, several strategic choices related to priority filings are available that, among other things, affect the timing of patent protection and the timing of invention disclosure (Johnson and Popp 2003).…”

“…In an international context, when the same invention is protected in several countries, it goes through several screening processes -that is, its quality and patentability is examined at multiple national patent offices by multiple patent examiners. Webster et al (2014) provide empirical evidence that the national treatment principle is not strictly practiced as domestic applicants are more often granted patents in comparison to foreign applicants. 19 Also, the stringency of examination between national patent offices has been observed to differ (de Saint-Georges and van Pottelsberghe 2011; van Pottelsberghe 2011).…”

“…In principle, patent families can contain a variety of patent documents (i.e., territorial exclusive rights) with heterogeneous scopes of protection and economic value. Due to differences in national patent laws, stringency of patent examination processes, and incentives of patent examiners, it is possible that some of the national patent applications filed to protect the same invention are granted by national patent offices whereas some are rejected (Webster et al 2007;Picard and van Pottelsberghe 2013;Webster et al 2014;de Rassenfosse et al 2016). The structure of patent families and the chosen filing routes are of interest because they convey information on the (expected) technological and economic value of the underlying invention and its derivative intellectual property rights (cf.…”

Risky recombinations: Institutional gatekeeping in the innovation process

“…Because their choices directly affect the workings of markets (Polidoro 2013), gatekeeping institutions typically strive to show that their evaluation criteria and processes are "objective." Nevertheless gatekeeping institutions can deviate from objectivity in several ways (Clayman & Reisner 1998, Short, Toffel & Hugill 2013, Boudreau, Guinan, Lakhani & Riedl 2013, Webster, Jensen & Palangkaray 2014.…”

Is there a case for non-discrimination in the international protection of intellectual property?

“…Rather surprisingly, existing evidence suggests that even WTO members tend to discriminate against foreign innovators in practice. For example, Webster et al (2014) find that, all else equal, both European and Japanese patent offices are more likely to grant patents to domestic applicants relative to foreign ones. In similar vein, using data for Canada, Mai and Stoyanov (2014) find that Canadian firms are substantially more likely to win court cases when the dispute involves foreign firms as opposed to other Canadian firms.…”