Who's Patenting What? An Empirical Exploration of Patent Prosecution

Abstract

Patents are big business. Individuals and companies are obtaining far more patents today than ever before.4 Some simple calculations make it clear that companies are spending well over $5 billion a year obtaining patents in the U.S. -to say nothing of the costs of obtaining patents elsewhere, and of licensing and enforcing the patents. 5There are a number of reasons why patenting is on the rise -p rimary among them a booming economy and a shift away from manufacturing and capital-intensive industries towards companies with primarily intellectual assets. But whatever the reason, it is evident that many companies consider patents important.We

Examiner Characteristics and Patent Office Outcomes

“…The large number of applications facing the PTO means that examiners are subject to sharp time constraints; the process of reading and evaluating an application, searching for prior art, writing a rejection, responding to an amendment with a second office action, having an interview, and fulfilling various formal requirements can take three to four years on average (Allison & Lemley, 2000), but the examiner spends an average of only eighteen hours over those years working on any given application (Lemley, 2001).…”

An Empirical Look at Software Patents

“…First, we compared our list of software patents to a set of 330 software and Internet patents identified in research conducted for the papers by Allison and Lemley (2000) and Allison and Tiller (2003). 8 These patents were identified by reading a larger number of patents, but applying a more narrow definition of software inventions (again, where the invention is completely embodied in software).…”

“…Thus our false negative rate for "pure" software patents appears to be quite small (8 percent). Second, using statistics generated by the research in Allison and Lemley (2000), we calculated an upper bound on the comparable false positive rate of 26 percent. 10 Given that we are using a broader definition of software patent, it is reassuring to find that this number is not much larger conventional process of molding rubber goods could be patented.…”

“…The data used in Allison and Lemley (2000) are based on reading 1,000 randomly selected patents issued between mid 1996 and mid 1998. That data was augmented in Allison and Tiller (2003) by examining 2,800 patents issued between 1990 and 1999 identified via a keyword search (for the terms Internet or world wide web) restricted to patents included in classes 705, 707, or 709.…”

“…For instance, one class includes "arrangements for producing a permanent visual representation of output data." This is a functional description that 11 Allison and Lemley (2000) and Allison and Tiller (2003) also reject the idea of using patent classifications to identify software patents. According to Griliches (1990), a patent class is "based primarily on technological and functional principles and is only rarely related to economists' notions of products or well-defined industries (which may be a mirage anyway).…”