Myths of Litigated Patents
In the world of patent analytics, patent data serves two primary purposes. For one, it acts as a snapshot of the past, helping to show history in the form of patent statistics pertaining to the USPTO, patent examiners and patent applicants. The second key function of patent data is that it helps us identify meaningful correlations we can use to help predict future outcomes, and to react to those predictions in a meaningful way. LexisNexis® Intellectual Property is known for identifying examiner characteristics, such as their experience levels and patent allowance rates, to name a few, and using those characteristics to help predict the events that will arise in patent prosecution, including having litigated patents.
Dr. Shine (Sean) Tu, Professor of Law at the West Virginia University College of Law, researched whether patent examiner characteristics can provide insight into whether a patent that is issued will ultimately be litigated. Patent data suggests that the answer is YES, but the characteristics that count the most might come as a surprise.
Background on patent examiner variability
It is important to understand that not all USPTO patent examiners are the same; there is a large discrepancy between examiners who grant a lot of patents compared to those who are unlikely to grant a patent. In fact, half of all USPTO patents are issued by only 10% of the total patent examiner pool. On the flip side, there is a group of patent examiners comprising 20% of the total examiner pool that issues only 0.6% of all USPTO patents.
Within our patent analytics platform, LexisNexis PatentAdvisor®, we use a proprietary algorithm, PatentAdvisor ETA™ (Examiner Allowance Rate), to predict patent examiner behavior and to classify USPTO patent examiners as either “red,” “yellow” or “green.” On one end of the spectrum of examiner difficulty, red patent examiners are the most difficult to face, and require more time and resources for patent applicants to overcome. On the other end of the spectrum, green patent examiners are the least difficult and issue patents more quickly than red or yellow patent examiners. Yellow patent examiners fall somewhere between red and green patent examiners in terms of difficulty.
Dr. Tu started his research with three hypotheses (myths:)
- Examiners who have high allowance rates will issue more (than expected) litigated patents.
- Examiners who issue very few patents will issue less litigated patents.
- Examiners with the least amount of experience will issue litigated patents at a higher than expected rate.
Rational thinkers may conclude that the examiners who issue patents the quickest are more likely to issue weak patents, and, therefore, that quick patent examiners are the most likely to have their patents litigated. Despite making a lot of sense, this is simply not the case.
Litigation correlation: myths vs. reality
There are actually quite a few logical assumptions about patent litigation that we can debunk using USPTO patent data. Myth number one is that patents issued by patent examiners with high allowance rates are more likely to be litigated; but the reality is that there is little correlation between examiner allowance rates and patent litigation rates. Similarly, the second myth is that patent examiners who issue few patents have a lower rate of litigation. Once again, it makes sense that examiners who take their time on each patent application might issue less litigated patents, but USPTO data shows no meaningful correlation. The third myth is that litigated patents are more likely to come from patent examiners with the least amounts of examination experience.
Dr. Tu’s research dispelled the myths with these facts:
- High allowance rate examiners issue a lower than expected rate of litigated patents.
- Low allowance rate examiners issue an expected amount of litigated patents.
- Primary patent examiners who are no longer supervised issue a disproportionally high rate of litigated patents.
A correlation between examiner experience and litigation
Dr. Tu found that there actually is a correlation between examiner experience and litigation, but it is not as straightforward as one might think.
The meaningful correlation that does exist is that patent examiners with three to six years of experience are the most likely to issue patents that are later litigated. Why? For most patent examiners, there is a transition that occurs from a highly supervised junior attorney to a “primary” patent examiner. As supervision fades, but before patent examiners really become comfortable with their autonomy and the technology they evaluate, there is a spike in the issuance of patents that arguably should have been rejected.
In the world of patent data, we live for meaningful correlations. Patent tools like the PatentAdvisor™ patent analytics platform help users identify correlations so they can adapt their patent strategies to obtain the best possible outcomes.
Learn more about PatentAdvisor exclusive patent analysis tools, and PatentAdvisor ETA, the single most informative metric for predicting patent examiner behavior.
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