This Article begins to rectify this deficiency, advancing the conversation along two dimensions. First, it provides a novel theoretical source for a granting bias on the part of the Agency, positing that the inability of the PTO to finally reject a patent application may create an incentive for the resource-constrained Agency to allow additional patents. Second, this Article attempts to explore, through a sophisticated natural experiment framework, whether the Agency is in fact acting on this incentive and overgranting patents. Our findings suggest that the PTO is biased toward allowing patents. Moreover, our results suggest the PTO is targeting its overgranting tendencies toward those patents it stands to benefit from the most—that is, those patent applications directed toward technologies that have historically had high repeat-filing rates, such as information, computer, and health-related technologies. Our findings provide policymakers with much-needed evidence that the PTO is indeed overgranting patents. Our results also suggest that the literature has overlooked a substantial source of Agency bias; hence, recent fixes to improve patent quality will not achieve their desired outcome of extinguishing the PTO’s overgranting proclivities.
Notre Dame Law Review