Unenforceability: Research Report

Abstract

This is a short version of the full paper available at http://http://ssrn.com/abstract=2167417.

There has been no systematic attempt to determine whether the patent doctrine of inequitable conduct is or is not working as theorized. This study fills that gap. We find that patents held unenforceable have clear hallmarks of risky prosecution behavior, such as longer pendency and fewer disclosures of prior art as compared to other types of litigated patents. The results indicate that the doctrine is likely to be operating better than the conventional wisdom would suggest.

Keywords: patents, unenforceability, inequitable conduct, empirical, patent data