View article

It is widely recognized that the Patent Office grants overly-broad patents because it has deficient knowledge of the relevant prior art, especially in high technology areas with significant nonpatent prior art. This paper presents five strategies to:(a) increase the quantity and quality of information obtained by the Patent Office from the patentee and her competitors; and (b) create disincentives for patentees to engage in opportunistic behavior by capitalizing on the information asymmetry between patentees and the Patent Office. The first and second strategies propose changes to our current prior art information disclosure rules based on insights from the economic theory of incomplete contracts. The first strategy proposes that we give patentees the option of presenting an expanded information disclosure statement (IDS) to the Patent Office, disclosing all relevant prior art, including an analysis of how the claims, as filed …