Complex Innovation and the Patent Office

46 Pages Posted: 17 Jul 2017 Last revised: 21 Mar 2018

See all articles by Ryan Whalen

Ryan Whalen

The University of Hong Kong - Faculty of Law

Date Written: July 10, 2017


As the universe of available information becomes larger and innovation becomes more complex, the task of examining patent applications becomes increasingly difficult. This Article argues that the United States Patent Office has insufficiently responded to changes in the information universe and to innovation norms. This leaves the Patent Office less able to adequately assess patent applications, and more likely to grant bad patents.

After first demonstrating how innovation has been responsive to contemporary innovation norms for hundreds of years, this Article uses information and data science methods to empirically demonstrate how innovation has drastically changed in recent decades. After empirically demonstrating the changed innovation system and the inadequate response to these changes by the USPTO, this Article concludes with policy prescriptions aimed to help the Patent Office implement examination procedures adequate to assess 21st century innovation. These prescriptions include more granular crediting for the time spent by examiners assessing applications, an increased focus on teamwork at the Patent Office, improvements to the inter partes review process, and alterations to the analogous art doctrine.

Keywords: intellectual property, patents, technological complexity

JEL Classification: O32, O33, O34, O38

Suggested Citation

Whalen, Ryan, Complex Innovation and the Patent Office (July 10, 2017). 17 Chicago-Kent Journal of Intellectual Property 226, 2018, Available at SSRN:

Ryan Whalen (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong

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