Incentives to Challenge and Defend Patents: Why Litigation Won’t Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help

Name

Incentives to Challenge and Defend Patents: Why Litigation Won’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 Won’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: “Given 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.”

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

Excerpts and Summaries

Created

Saturday 24 of January, 2009 23:51:52 GMT
by Unknown

LastModif

Monday 02 of February, 2009 19:25:07 GMT
by Unknown