Joint UNU-MERIT/School of Governance Seminar: “The demise of post-grant review, patent thickets and the public goods effect”
Litigation (in particular, post-grant validity challenges at patent offices) provides an important mechanism to correct the granting of weak patents. However, validity challenges will occur only if the (expected) private gains from challenging a granted patent right exceed the costs of a challenge. Even then firms may refrain from challenges if they anticipate that many others will also benefit from the revocation of a weak patent. (This is a public goods problem). Finally, as more firms are caught up in patent thickets, challenges to weak patents may become too costly if they invite counter-challenges.
Using data on opposition proceedings against patents granted at the European Patent Office (EPO), Dr. Georg von Graevenitz (University of East Anglia, UK) discusses a study that points to two fundamental weaknesses of post-grant review. First, in technical fields characterized by low concentration of patent ownership, the likelihood of correcting erroneous grant decisions by third-party opposition is low. Second, in fields with a large numbers of mutually blocking patents, incentives to oppose patents are sharply reduced. This shows that the social benefits of post-grant review are currently concentrated in technical fields with discrete technologies and strong ownership concentration.
Georg von Graevenitz holds a PhD in economics from the University of London. He currently is Senior Lecturer in Innovation Management at Norwich Business School, University of East Anglia (London). His research focus is on intellectual property rights, innovation and entrepreneurship. Dr. von Graevenitz has held academic posts previously at University College London, the Technical University of Munich and Ludwig Maximilians University of Munich. He also has provided advice to regulatory authorities and international organizations including the European Commission, WIPO, and UKIPO.
For more information and to register, please visit the UNU-MERIT seminars page.