Benefits and Costs of an Opposition Process

Intellectual Property and Patents

Article Snapshot

Author(s)

Jonathan Levin

Source

Book chapter in Patents in the Knowledge-Based Economy, National Academies Press, Wesley Cohen and Stephen Merrill, eds., 2004

Summary

This article asks whether adding a process for objecting to the grant of a patent would benefit the United States.

Policy Relevance

Allowing patent oppositions in the United States would have broad benefits.

Main Points

  • In the past two decades, the number of patents reviewed by the patent office has tripled, while patent protection has been expanded to cover genetics, software, and business methods.

  • Many worry that the patent office lacks expertise and resources to do a good job of screening these patents, and is granting weak or invalid patents. This can harm competition.

  • In the United States, there are few chances to object to a patent’s being granted early in the process. In Europe, “patent opposition” proceedings give outsiders a chance to object. The proceedings cost participants less than $100,000 and take about three years.

  • Allowing patent oppositions in the United States means that sometimes these proceedings would save money on litigation later, but sometimes they would be used as a substitute for licensing, which would be harmful.

  • The benefits of using oppositions would probably exceed the costs.  Benefits would include reducing the costs of litigation, educating patent examiners in new technologies, and preserving competition.

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