Live and Let Live: A Tale of Weak Patents

Intellectual Property and Patents

Article Snapshot


Jay Pil Choi


Journal of the European Economic Association, Vol. 3, No. 2-3, pp. 724-733, April-May 2005


This paper asks how to get rid of weak patents that hinder innovation.

Policy Relevance

Reducing the number of weak patents will make it easier for innovators to bring new products to consumers quickly.

Main Points

  • Many scholars accept that the U.S. patent office grants too many weak patents. Some argue that this creates “patent thickets” that slow down innovation while rights are sorted out.


  • This paper points out that relying on other firms to challenge a patent holder’s weak patents is not likely to work:
    • Any firm that challenges a weak patent knows that it benefits competitors as well as itself by winning.
    • If the patent holder and the potential challenger both own weak patents, they are likely to adopt a “live and let live” strategy.


  • To give other firms good reasons to challenge weak patents, the author argues:
    • Legislators could reward the first successful challenger with exclusive rights.
    • Giving firms more input into the process for challenging patents right after they are granted (a European-style “opposition” procedure).
    • Giving firms more input into the process before a patent is granted, so long as they provide information only. 

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