An Empirical Study of the Twenty-Year Patent Term

AIPLA Quarterly Journal, Vol. 22, Numbers 3&4, p. 369, Summer/ Fall 1994

Stanford Public Law Working Paper No. 2127292

56 Pages Posted: 10 Aug 2012

Date Written: 1994

Abstract

The new twenty-year patent term has engendered considerable controversy. A number of inventors have complained that the new patent term may reduce patent protection because some applications spend a number of years in “prosecution” before the PTO. Under the old law, delay in processing an application did not hurt the patentee, but under the new rule, each day spent in prosecuting the patent is a day of protection lost.

The purpose of this study is to evaluate in a neutral and systematic way the likely effects of the new law. I conclude that on average, and for most industries, the new law gives more protection to patentees than the old law. However, there is some question as to whether the biotechnology industry will receive less protection under the new law. I conclude that there is no significant relationship between the length of time a patent spends in prosecution and whether it will be judged valid in the courts. Finally, the study produces some interesting data about the problem of “submarine patents.”

Suggested Citation

Lemley, Mark A., An Empirical Study of the Twenty-Year Patent Term (1994). AIPLA Quarterly Journal, Vol. 22, Numbers 3&4, p. 369, Summer/ Fall 1994; Stanford Public Law Working Paper No. 2127292. Available at SSRN: https://ssrn.com/abstract=2127292

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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