Incentives to Challenge and Defend Patents: Why Litigation Wonâ€™t Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help

Name: Incentives to Challenge and Defend Patents: Why Litigation Wonâ€™t Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help
Cite: 19 Berkeley Tech. L.J. 943
Year: 2004
Bluebook cite: Joseph Farrell & Robert Merges, Incentives to Challenge and Defend Patents: Why Litigation Wonâ€™t Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help, 19 Berkeley Tech. L.J. 943 (2004).
Author: Joseph Farrell & Robert Merges
URL: 19 BERKTLJ 943
Item Type: article
Summary: Abstract: â€œGiven the limits on Patent Office scrutiny of patent applications, one might hope that ex post litigation can fix at least the important errors. Unfortunately, the often grossly skewed incentives to challenge and to defend issued patents make this view too optimistic. Since litigation cannot fix all errors, we urge better USPTO funding and higher standards of initial review, better incentives (not limited to formal duties) for applicants to find and disclose prior art information, and the creation of a cheap and workable administrative post-issue review. We explain why existing administrative reviews are not a workable system, and recommend some features that a new system should have.â€

See specifically Part IV(C), which discusses and provides economic models regarding incentives to litigate versus license.

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