Discrimination Against Foreigners in the U.S. Patent System

58 Pages Posted: 27 Oct 2020

See all articles by Gaétan de Rassenfosse

Gaétan de Rassenfosse

École Polytechnique Fédérale de Lausanne

Reza Hosseini

École Polytechnique Fédérale de Lausanne

Date Written: September 1, 2020

Abstract

Inventions of foreign origin are about ten percentage points less likely to be granted a U.S. patent than domestic inventions. An empirical analysis of 1.5 million U.S. patent applications identifies three systematic differences between foreign and domestic patent applications that partly explain this bias. They include differences in patent agents, financial resources of the applicants, and the level of effort that applicants put into the prosecution process. We find no evidence of disparate treatment (‘intentional discrimination’) of foreigners. Instead, our evidence points to a disparate impact (‘unintentional discrimination’) of the U.S. patent system on foreign inventors. Our results suggest unequal access to the patent system for foreigners compared to locals (but also for small U.S. firms). Giving examiners the power of (truly) rejecting a patent application may be one solution to level the playing field between foreigners and locals, but also between large and small firms.

Keywords: foreign bias, discrimination, disparate impact, national treatment principle, patent system

Suggested Citation

de Rassenfosse, Gaétan and Hosseini, Reza, Discrimination Against Foreigners in the U.S. Patent System (September 1, 2020). Available at SSRN: https://ssrn.com/abstract=3688448 or http://dx.doi.org/10.2139/ssrn.3688448

Gaétan De Rassenfosse (Contact Author)

École Polytechnique Fédérale de Lausanne ( email )

Station 5
Odyssea 1.04
1015 Lausanne, CH-1015
Switzerland

Reza Hosseini

École Polytechnique Fédérale de Lausanne ( email )

Quartier UNIL-Dorigny, Bâtiment Extranef, # 211
40, Bd du Pont-d'Arve
CH-1015 Lausanne, CH-6900
Switzerland

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