Patent Examination and Litigation Outcomes

43 Pages Posted: 25 Jun 2014 Last revised: 17 Jan 2019

See all articles by S. Sean Tu

S. Sean Tu

West Virginia University College of Law

Date Written: June 23, 2014


Conventional wisdom argues that unnecessary litigation of low quality patents hinders innovation, and that the PTO could play a role with its high grant rates. Accordingly, it is important to answer these questions: (1) which patent examiners are issuing litigated patents, (2) are examiners who are “rubber stamping” patents issuing litigated patents at a disproportionately higher rate, and (3) are examiners with less experience issuing more litigated patents? In sum, do patent examiners who issue litigated patents have common characteristics? Intuition would argue that those examiners who issue the most patents (approximately one patent every three business days) would exhibit a higher litigation rate. Surprisingly, this study suggests that this is wrong.

This study uses two new patent databases that code for nearly 1.7 million patents and approximately 12,000 patents that were litigated between 2010 and 2011. This study determined that (1) litigated patents mainly come from primary examiners (those examiners with more experience), and (2) primary examiners with between three to five years of experience and who grant between forty-five and sixty patents per year are contributing to the litigated patent pool at a higher rate than expected. Interestingly, the highest volume primary examiners (examiners who on average grant more than eighty patents per and have more than eight years of experience) do better than expected.

Keywords: patent, patents, patent law, patent reform, intellectual property, examiner, patent examination, USPTO

Suggested Citation

Tu, Shine (Sean), Patent Examination and Litigation Outcomes (June 23, 2014). Stanford Technology Law Review, Vol. 17, p. 507, 2014, WVU Law Research Paper No. 2014-3, Available at SSRN:

Shine (Sean) Tu (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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