Where's the Innovation? An Analysis of the Quantity and Qualities of Anticipated and Obvious Patents

35 Pages Posted: 26 Mar 2012 Last revised: 2 Jan 2015

See all articles by Shawn P. Miller

Shawn P. Miller

University of San Diego School of Law; Stanford Law School

Date Written: February 10, 2012


While more innovation is the main theoretical benefit of patent protection, some have argued an increasingly swamped U.S. Patent Office has granted many patents with negligible innovation value. I test this argument and determine the characteristics of patents that lack innovation value by analyzing 980 litigated patents that were subject to anticipation or obviousness decisions during the last decade. Using a selection corrected probit model, I obtain unconditional estimates of the likelihood that patents with given characteristics would be found to lack innovation value. I estimate a surprising 27 percent of all patents would be found at least partially invalid if subject to an anticipation or obviousness decision. Types of patents that have been particularly criticized, including those covering software and business methods and those owned by licensing firms, possess significantly higher innovation-based invalidity rates.

Keywords: Patent, NPE, Software, Method, Anticipation, Obviousness, Innovation, USPTO

JEL Classification: K00, K41, L00, O34

Suggested Citation

Miller, Shawn Patrick, Where's the Innovation? An Analysis of the Quantity and Qualities of Anticipated and Obvious Patents (February 10, 2012). Available at SSRN: https://ssrn.com/abstract=2029263 or http://dx.doi.org/10.2139/ssrn.2029263

Shawn Patrick Miller (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

HOME PAGE: http://https://www.sandiego.edu/law/faculty/biography.php?profile_id=8683

Stanford Law School ( email )

Stanford, CA 94305
United States

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