Can the Patent Office Be Fixed?

Intellectual Property and Patents

Article Snapshot


Mark Lemley


Stanford Law and Economics Olin Working Paper No. 396, August 2010


This paper surveys proposals to improve the performance of patent examiners in weeding out bad patents.

Policy Relevance

Changing the rules for patent examiners and for courts might help reduce the number of low-quality patents.

Main Points





  • Patent examiners in the United States have been awarding far too many low-quality patents, especially in software.
  • Many applicants whose application for a patent is rejected at first continue to try again and again until it is accepted, filing many “continuances” that contribute to examiner backlogs.
  • Paying attention to how patent examiners behave is important:
    • Junior examiners reject more patent applications and seem to be more zealous at weeding out bad patents than senior examiners.
    • Examiners tend to pay more attention to prior art they find themselves than to that turned in by others.
  • Many patent reform supported by most observers strategies are unlikely to work, including ensuring the patent office has more funding.
  • These strategies might help:
    • Patents examined by a “second pair of eyes.” Studies show that when two examiners must agree that a patent be granted, more are rejected.
    • Trying to train and reward patent examiners for unbiased and thorough examinations, and treating rejections the same as acceptances.
    • “Tiered review:” Letting applicants who want to improve the chances that a court will find their patent valid pay more for a better examination.
    • “Post-grant oppositions.
    • Weakening the courts’ presumption that patents are valid.

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