Low-quality patents in the eye of the beholder: Evidence from multiple examiners

Gaétan de Rassenfosse (EPFL), Adam B. Jaffe (Motu) & Elizabeth Webster (Swinburne University of Technology), “Low-quality patents in the eye of the beholder: Evidence from multiple examiners”

Low-quality patents generate business uncertainty and may create unjustified monopoly rights. There presence is of considerable concern to businesses operating in patent-dense markets. We define low-quality patents as patents whose inventive step is too small to deserve patent protection. There are two pathways by which this may be occurring: the patent office may apply systematically a standard that is too lenient (low inventive step threshold); and the patent office may grant patents that are, in fact, below the threshold (so-called ‘weak’ patent). This paper uses novel data from ‘twin’ patents that have been examined at the five largest patent offices to derive first-of-their-kind office-specific estimates of the height of the inventive step threshold and the prevalence of weak patents.