Global patent systems: Revisiting the national bias hypothesis

Abstract

This paper revisits the literature providing empirical evidence that patent offices are biased in favour of their national applicants. If true, this "national bias" would be proof of disrespect of several international patent-related treaties. Existing investigations are however subject to an important limitation: they focus only on grant rates -a potentially biased indicator of stringency, since it is influenced by economic forces. It is argued that including a deeper analysis of how the patent examination process is carried out provides a more robust approach.Relying on a unique database of 2400 patent families filed simultaneously in three patent offices (EPO, JPO & USPTO), the paper finds no evidence of national bias throughout the examination process of any of them.

Are patent offices substitutes?

“…One could argue that lower grant rates for non-domestic ISA are the result of a double layer of examination carried out both by the ISA and the subsequent patent offices. However, these results should be interpreted with a degree of cautiousness, as grant rates are also driven by economic factors not related to the office (strategic consideration, expected return, as explained in Petit et al (2021)).…”

“…However, this metric does not distinguish between an actual refusal from the office based on unfulfilled patentability conditions and a withdrawal from the applicant (which can be based on its experience, resources, or potential economic value). As a result, a lower probability to reach a grant in a patent office is not necessarily driven by the office itself and should be interpreted carefully (see Petit et al, 2021).…”