Surprising Influence of Patent Attorneys over Invention Quality
© 2023 EPFL
A global team of researchers from Ecole polytechnique fédérale de Lausanne, Switzerland, the University of Melbourne, and Swinburne University of Technology, Australia, has recently unearthed a surprising twist in the patent system narrative. The caliber of patent attorneys, it turns out, has a more decisive impact on patent grants than the quality of the inventions they represent.
Breaking down patent examination decisions at five leading patent offices across the United States, Europe, Japan, Korea, and China, the authors discovered that the patent attorney’s proficiency trumps the invention's merits in securing patent rights, at least in some offices. Prof. Gaétan de Rassenfosse, one of the scholars behind the study, explains: "Our findings paint a stark image of the patent system, where the playing field isn't as level as we might hope. The prowess of the patent agent seems to hold more weight in the U.S. Patent and Trademark Office than the invention itself. We find that a slight uptick in the attorney's competence has a more significant impact on the chances of securing a patent than an equal uptick in the invention's quality."
The study also underscores that the attorney's expertise becomes even more pivotal in less standardized or rapidly-evolving technology sectors, such as Information and Communication Technology (ICT) and software, while their role diminishes somewhat in highly codified industries like chemicals and pharmaceuticals.
These findings carry profound implications for innovators, entrepreneurs, scientists, and engineers who rely heavily on patent rights to safeguard their creations. The study hints that inventors backed by influential attorneys are more likely to secure exclusive rights to their inventions. "In an ideal world, the decision to grant a patent should hinge solely on the invention's merit, not the attorney's reputation," notes de Rassenfosse, "Our research amplifies the call to action for policymakers to consider creating a more equitable system that ensures all inventors receive access to high-quality legal representation."
The full article is available in open access at https://doi.org/10.1111/joie.12319