Center for Contract and Economic Organization
The Charles Evans Gerber Transactional Studies Center
In recent years, problems with the U.S. patent system have garnered attention from scholars and policymakers of all types. Concerns about the competitiveness of U.S. industry undergird worries that the Great Recession will linger as long as the 1990s downturn in Japan.' It is no coincidence that a Congress that has remained at loggerheads on most aspects of economic policy could reach a consensus on the enactment of the Leahy- Smith America Invents Act of 2011,2 by far the most important statutory reform of U.S. patent law since 1995. Yet, despite Congress's long overdue attention to patent law, it is unlikely that the statute will resolve the troubling quality issues that have dogged the system for years. Prominent critics of the patent system argue that a decades-long decline in the quality of patents undermines the effectiveness of the system.3 Some go so far as to insist that poor-quality patents cause a drag on the competitiveness of the national economy.4 Those concerns are prominently displayed in the Supreme Court's spring 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,5 which emphasized the Court's view that the Federal Circuit has gone so far in liberalizing patent policy as to inhibit the pace of innovation.6
As concerns about systemic failure have come to the fore, attention in recent years increasingly has focused on the role of examiners in this process. If examiners differ from each other in how they approach applications, then they introduce arbitrariness into the process. In that vein, remarking on notable levels of examiner idiosyncrasy, lain Cockburn, Samuel Kortum, and Scott Stem notably quip that "there may be as many patent offices as patent examiners. 7 In a recent paper in the Review of Economics and Statistics, Mark Lemley and Bhaven Sampat follow Cockbum, Kortum, and Stem, arguing that applications examined by those with more experience are more likely to be granted than applications examined by those with less experience.8
Ronald J. Mann,
The Idiosyncrasy of Patent Examiners: Effects of Experience and Attrition,
Tex. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/445