Patent Office Cohorts

55 Pages Posted: 11 Jul 2015 Last revised: 13 Sep 2016

See all articles by Michael Frakes

Michael Frakes

Duke University School of Law

Melissa F. Wasserman

The University of Texas at Austin - School of Law

Date Written: October 26, 2015

Abstract

Concerns regarding low quality patents and inconsistent decisions prompted Congress to enact the first major patent reform act in over sixty years and likewise spurred the Supreme Court to take a renewed interest in substantive patent law. Since little compelling empirical evidence exists as to what features affect the Agency’s granting behavior, policymakers have been trying to fix the patent system without understanding the root causes of its dysfunction.

This Article aims to fill at least part of this gap by examining one feature of patent examiners that may affect their grant rate throughout their tenure: the year in which they were hired by the Patent Office. An examiner may develop a general examination “style” in the critical early stages of her career that persists even in the face of changes in application quality or patent allowance culture at the agency. To the extent initial hiring environments influence a newly hired examiner’s practice style, variations in such initial conditions suggests examiners of different hiring cohorts may follow distinct, enduring pathways with their examination practices. Consistent with this prediction, we find strong evidence that the year an examiner was hired has a lasting effect on her granting patterns over the tenure of her career. Moreover, we find that the variation in the particular pathways adopted by different Patent Office cohorts aligns with observed fluctuations in the initial conditions faced by such cohorts. By documenting the existence of cohort effects and by demonstrating the importance of initial environments in explaining certain long-term outcomes, this analysis holds various implications for patent policy and the administrative state more generally.

Suggested Citation

Frakes, Michael and Wasserman, Melissa F., Patent Office Cohorts (October 26, 2015). 65 DUKE L.J. 1601 (2016). Available at SSRN: https://ssrn.com/abstract=2629447

Michael Frakes (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Melissa F. Wasserman

The University of Texas at Austin - School of Law ( email )

727 East Dean Keeton St
Austin, TX 78705
United States

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