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Monday, April 8 • 12:30pm - 1:45pm
Haug Family Innovation Lecture Series: Irrational Ignorance at the Patent Office

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Haug Family Innovation Lecture Series: Irrational Ignorance at the Patent Office

Presented by Barnes & Thornburg

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” Because so few patents are economically significant, perhaps it makes sense to rely upon litigation to make detailed validity determinations in those rare cases rather than increase the expenses associated with conducting a more thorough review of all patent applications. This Article conducts a cost-benefit analysis, employing new and rich sources of data along with sophisticated empirical techniques to form novel, empirically driven estimates of the relationships that Lemley was forced, given the dearth of empirical evidence at his time, to assume in his own analysis. Armed with these new estimates, this Article demonstrates that the savings in future litigation and prosecution expenses associated with giving examiners additional time per application more than outweigh the costs of increasing examiner time allocations. Thus, we conclude the opposite of Lemley: society would be better off investing more resources in the Agency to improve patent quality than relying upon ex-post litigation to weed out invalid patents. Given its current level of resources, the Patent Office is not being “rationally ignorant” but, instead, irrationally ignorant.

avatar for Melissa Wasserman

Melissa Wasserman

Charles Tilford McCormick Professor of Law, University of Texas
Melissa Feeney Wasserman joined the University of Texas law faculty in 2016. Her research focuses on the institutional design of innovation policy, with a particular emphasis on patent law and administrative law. Her articles have been published or are forthcoming in both student... Read More →
avatar for Steve Yelderman

Steve Yelderman

Professor of Law, University of Notre Dame
Professor Stephen Yelderman is a professor of law at the University of Notre Dame. He joined the faculty in 2013 and was promoted to full professor in 2018. Prior to joining the faculty of Notre Dame, Yelderman served as a Trial Attorney in the U.S. Department of Justice Antitrust... Read More →
avatar for Ed Haug

Ed Haug

Managing Partner, Haug Partners LLP
Ed Haug is the managing partner of Haug Partners LLP and was a founding member of the firm in 1997. The firm has offices in New York City, Boston, and Washington D.C. and focuses on intellectual property, antitrust, FDA and commercial litigation among other complimentary practice... Read More →

Monday April 8, 2019 12:30pm - 1:45pm EDT
Notre Dame Law School 1100 Eck Hall of Law, Notre Dame, IN 46556, USA