شاخص کیفیت برای سیستم های ثبت اختراع

This paper presents a quality index for patent systems. The index is composed of nine operational design components that shape the transparency and stringency of patent systems and affect the extent to which they comply with patentability conditions. Seven components are related to rules and regulations (e.g., grace period, opposition process and continuation-in-parts), while two components measure patent offices’ resource allocation policy (i.e., workload per examiner and incentives). The index is computed for 32 national patent systems, and displays a high degree of heterogeneity across countries. Cross-sectional quantitative analyses suggest that the demand for patent rights is lower in patent systems with a higher quality index, controlling for research efforts, patent fees and the “strength” of enforcement mechanisms. These results have important policy and research (metrics) implications.

Recent policy debates in the US have focused on the importance of the quality of patent examination processes. In fact, the US Patent and Trademark Office (USPTO) is often criticized for its propensity to grant many patents of low quality.1 In contrast, the European Patent Office (EPO) is perceived as offering higher quality patent prosecution services. Apart from these perceptions, no or little evidence is available on the quality of patent systems. As a consequence studies of how qualitative differences might influence the behavior of innovating firms are lacking. As a matter of fact, the quality of patent systems has received relatively little attention in the economic literature. From the early theoretical investigations onwards, the focus has been on the “strength” of patent systems, which is generally assumed to affect the rate of innovation. The “strength” terminology is not typically used to reflect the degree of quality of a patent system. Instead, a patent system is commonly classified as stronger when more domains are patentable (Gallini, 2002), when the period of patent protection is longer (Grossman and Lai, 2004), or when the geographical scope is enlarged (Scherer, 2002). The indices of “patent rights” produced by Ginarte and Park (1997), and the updated versions published by Park (2008) for 110 countries and by Lerner (2002) for 60 countries, crystallize this tendency to define “strong” patent systems as those that are essentially applicant friendly. Applicant friendliness is a more relevant term because the index rises when more technological areas are patentable, when patents have a longer duration or when they provide patent owners with greater legal power.2 So far, the most common approach to empirically gauging quality within or across patent systems relies on rates. Scholars compare grant rates (e.g., Guellec and van Pottelsberghe de la Potterie, 2000, Jensen et al., 2006 and Palangkaraya et al., forthcoming) or litigation rates (including opposition rates, e.g., Graham et al., 2002). A patent that is granted or that resists litigation is assumed to be of high quality. This approach, while undoubtedly useful, is subject to a series of biases (see van Pottelsberghe de la Potterie, 2011), as (1) applicants may adopt heterogeneous filing strategies across industries and countries; (2) many “borderline” patents are never litigated or opposed; and (3) patent disputes are often undisclosed and negotiated bilaterally between opponents. Studies of patent litigations actually scrutinize ‘only’ the top of the “patent iceberg” (the most valuable patents are subject to litigation). The focus is rarely on the patent application assessment process or on the transparency of the system. Some authors explicitly consider the filtering process in their theoretical models (e.g., O’Donoghue, 1998, Dewatripont and Legros, 2008 and Farrell and Shapiro, 2008) and find that more stringent assessment processes induce more effective incentives to innovate. For Picard and van Pottelsberghe de la Potterie (2011) the quality of examination system is associated with two opposite forces: a selection signal that should reduce the number of submitted inventions with a small inventive step (there is little chance to be granted) and a credibility signal that should induce more applications (inventors feel more ‘secured’ in case of litigation). The quality of examination processes has also received increasing attention in recent years, especially among authors focusing on the US patent system.3Jaffe and Lerner (2004), Maskus (2006), Quillen (2008), and Bessen and Meurer (2008) implicitly or explicitly raise the hypothesis of a vicious cycle in which a low-quality assessment process leads to the filing of more low-quality applications, which in turn reduces the examination quality because examiners become overloaded. Such authors frequently argue that the low patentability standard in the US is mainly driven by the Court of Appeals of the Federal Circuit (CAFC), because judges create jurisprudence with their decisions, especially regarding patent invalidation proceedings. Although this argument is valid to some extent, it should not hide the fact that many factors shape the quality and transparency of patent application assessment processes. Scholars have rarely systemically investigated the processes put in place to check patentability conditions. When they have done so, they have tended to explore only the US patent system (i.e., Quillen, 2006 and Burk and Lemley, 2003). To the best of our knowledge, van Pottelsberghe de la Potterie (2011) provides the first attempt of an international, systemic, comparison of patent system quality. The author makes the working assumption that the quality of a patent system depends on both its stringency and transparency. These two dimensions can be gauged through the operational design of patent systems, which includes rules and regulations, and patent offices’ resource allocation practice. The author compares the operational designs of three major patent systems (Europe, Japan and the US) to investigate the extent to which the conditions of novelty and inventiveness are met in a transparent way. The international heterogeneity of operational designs may ultimately lead to different degrees of rigor and transparency in patent application assessment processes. The composite index built by van Pottelsberghe de la Potterie (2011) confirms that there is substantial variation in quality across the three patent systems, and graphical evidence suggests that the degree of quality is negatively correlated with the demand for patent rights. As a graphical representation of three points provides only partial evidence, there is an obvious need for further investigation into the impacts of the stringency and transparency of the application assessment process on applicants’ behavior. The objective of this paper, therefore, is to empirically test whether the degree of quality of patent systems – defined as the extent to which patentability standards are met in a transparent and stringent way – affects the behavior of applicants, especially in terms of their propensity to patent. This objective requires, first, the construction of a “quality” index of patent systems and, second, the inclusion of this index in a quantitative model designed to explain variations in the demand for patent rights across countries. The quality index presented in this paper is based on nine operational design components. The index is computed for the national patent systems of 32 countries, with at least 1, 800 patent applications filed in 2008. The components include seven rules and legal standards (e.g., grace period, opposition process, hidden applications) and two resource allocation factors (i.e., workload per examiner and incentives). The quantitative analysis aims to explain various alternative indicators of demand for patent rights on the basis of the quality index of patent systems, controlling for research efforts, patent fees and the strength of enforcement mechanisms. The paper is structured as follows. Section 2 presents the methodology used to compute the index from nine components of patent systems’ operational designs. Section 3 presents and compares the indices computed with three alternative weighting schemes. Section 4 is devoted to the empirical model, which aims to evaluate the impact of the quality index of patent systems on the demand for patent rights. Section 5 concludes and presents several policy implications. The results confirm that there are significant variations in patent system quality across countries, and that these variations, together with research efforts, patent fees and enforcement mechanisms, help to explain cross-country variations in the demand for patent rights.

The objective of this paper is to create a quality index of patent systems of 32 countries and test whether quality affects the behavior of applicants. The first part of the paper is devoted to the methodology used to compute the index (components and alternative weighting schemes). Heterogeneity is observed across countries. The EPO and the patent offices of the UK and several Nordic countries have the highest-quality metrics. At the other extreme are the US and several Commonwealth countries, which have the lowest indicators of quality. The medium-high group includes many European countries (e.g., Austria, Poland, France), the major Asian economies (e.g., Japan, China, South Korea, Malaysia) and several other countries (e.g., Russia, Switzerland). The medium-low group includes, among others, Germany, Brazil, Mexico, Spain and Singapore. The US patent reform, induced by the America Invents Act of September 2011, has improved the country's quality index slightly, allowing the US to move from the low-quality group to the medium-low quality group. This is essentially due to the switch towards a first-to-file system and the adoption of a post-grant opposition process. The second part of the paper aims to investigate whether the quality of patent systems affects applicants’ filing behavior. Several quantitative models are used to test whether patent systems with a high quality index receive fewer patent applications. The results show that the higher the index, the lower the demand for patent rights (measured using four alternative indicators, including the number of claims filed, by domestic organizations and from abroad, and the number of patents filed). In other words, applicants adapt their filing behavior according to the broad quality of the patent system they target. This negative relationship between quality and the demand for patent rights is still observed when relative fees, the number of researchers and the strength of enforcement mechanisms are taken into account. Interestingly, non-resident applicants are more sensitive to quality and relative fees than resident applicants. These results should be taken with caution and need further validation, either with a larger sample of countries, more years, or an industry level approach. This being said they are robust to several variations in the model and in the dependent variable, and as such they have important implications for policy makers, patent count methodologies and further research opportunities. The policy implications are threefold. First, as several facets of patent systems and their operational design influence applicant behavior, policy makers have a clear opportunity to fine-tune the design of their patent systems to a greater extent than is commonly believed. This is especially true for non-resident applicants, which are more sensitive to these policies than resident applicants. For instance, one way to further reduce the USPTO backlog of pending applications would be to reduce the reliance on continuations in parts (CIPs) and to set up a request for examination after a search report is made public. Second, recent years have been marked by more intense collaboration among the largest patent offices in the world. This is evidenced by the increasing number of national patent offices being recognized as International Search Authorities (ISA) for PCT filings at WIPO, by the explosion in the number of PPHs bilateral agreements (Patent Prosecution Highways). Under a PPH, a patent already examined by patent office A would be treated faster by patent office B if the search and examination report are made available. These projects could be perceived as preliminary steps towards a global mutual recognition process. The significant variations in the quality index across countries, worldwide and within the EU, suggest that a mutual recognition process would lead to a smaller common quality denominator effect: applicants could first file their patents in the least stringent, most opaque office, and then extend it abroad. However, should such a legitimate attempt to evolve towards a global patent system receive further political support, the index presented in this paper – and especially its nine components – would serve as a useful basis for considering preliminary convergence mechanisms. Third, the results presented in this paper suggest that patent count metrics based on priority applications in several national patent offices are subject to a potential bias. Indeed, patent office A might receive more applications than patent office B because the former has a lower quality index. In such situations, count differences would not automatically reflect differences in innovation performance. Finally, in our eyes the present paper paves the way to at least two interesting research opportunities. A first one is to tackle the Lemley vs. Jefferson controversy described by van Pottelsberghe de la Potterie (2011). Thomas Jefferson, the former president of the US, claimed that the government should restraint their propensity to grant monopolistic rights, because the latter have perverse effects. On the other hand, Lemley (2001) raised the “rational ignorance” concept, whereby patent offices should not devote resources to assess patents that would never be used. The quality index of patent systems shows an opposite effect than the patent strength index (also called patent rights) of Ginarte and Park (1997), which is essentially a patent friendliness index. The latter index has been used extensively in the literature to assess the economic impact of patent systems. One might, therefore, wonder whether a patent system with a higher quality index is more favorable to innovation and economic growth. Clearly, an extremely stringent system that would lead to the granting of, for example, only ten patents per year is unlikely to stimulate more innovation. However, the reverse is also true – the automatic granting of all patent applications would lead to a massive hold-up phenomenon, in which companies would allocate more resource to filing patents than to innovation. This is undoubtedly an interesting question for future research. A second field of research would be to improve the ‘output’ measures of examination stringency. The various sources of bias in these metrics (grant rates, litigation rates, opposition rates), briefly listed in the present paper, could be taken into account in order to have more reliable ‘stringency’ measures of patent systems.