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UNIVERSITÉ LIBRE DE BRUXELLES FACULTÉ DES SCIENCES SOCIALES,

POLITIQUES ET ÉCONOMIQUES SOLVAY BUSINESS SCHOOL

Thèse présentée en vue de l’obtention du grade de Docteur en Sciences Économiques et de Gestion

par

Nicolas VAN ZEEBROECK

Année académique 2007-2008

ESSAYS ON THE EMPIRICAL ANALYSIS OF PATENT SYSTEMS

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Jury

Directeurs de thèse : M. Hugues BERSINI

M. Bruno VAN POTTELSBERGHE DE LA POTTERIE Jury restreint : M. Michele CINCERA

Mme Catherine DEHON

Mme Christine GREENHALGH

(Membre Extérieur, St Peter's College, University of Oxford)

Mme Carine PEETERS

Mme Reinhilde VEUGELERS

(Membre Extérieur, K.U. Leuven)

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A mon père, qui m’a donné le goût de comprendre A mon grand-père, qui m’a donné celui d’écrire Et à Emilie, qui les entretient chaque jour

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CORPUS

Acknowledgements - ii Executive Summary - iv

Table of contents - vii List of figures - ix

List of tables - x Body of works - 1

References - 221 Appendices - 234

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Acknowledgements

This dissertation would not be what it is without the guidance, comments, and support I received from many people.

First of all, I am infinitely indebted to my supervisors and mentors, Hugues Bersini and Bruno van Pottelsberghe. I owe them the desire and the opportunity to invest a couple years of my life into the research that led to the present pages. Since I started as a student assistant to Hugues Bersini some ten years ago, his continuous availability, support, trust and guidance have been extremely valuable to me in many respects. I wish to express my infinite gratitude to Bruno van Pottelsberghe for his enthusiasm throughout this endeavour, for being an inexhaustible source of ideas, advice and encouragement, for the many fruitful discussions about my research, for his permanent concern that I should be clear and accurate in my writings, and for reviewing, correcting and improving my work. Although I take full responsibility for the views expressed in these pages and for any errors that might remain, his contribution has been crucially important, especially in chapters 2 through 5.

I would also like to thank many people who contributed to this dissertation in different respects: scientific, material, or personal.

From a scientific point of view, I drew much benefit from the views and comments I received from Dominique Guellec, Eugenio Archontopoulos, and Niels Stevnsborg. I met Dominique Guellec when he was Chief Economist of the European Patent Office and owe him – as I do to Bruno van Pottelsberghe – the topic of chapters 2 and 3 to which he contributed by providing the required data, helping me develop the hypotheses, providing essential comments on the results and their interpretation, and reviewing my manuscripts. Eugenio Archontopoulos and Niels Stevnsborg are respectively examiner and director at the European Patent Office. I really valued and enjoyed the exchanges I had with them, which helped me understand the subtleties of patenting processes and interpret the data correctly. They also reviewed and improved my manuscript corresponding to chapter 2, and I wish to thank them deeply for their inputs.

I am most grateful to Michele Cincera, Catherine Dehon, Christine Greenhalgh, Carine Peeters, and Reinhilde Veugelers for accepting to join my PhD jury, and I thank them for their time, commitment and numerous comments. They were considerably helpful in challenging my hypotheses, improving the reliability of my models, the accuracy of my interpretations, and the relevance of my conclusions.

Karin Hoisl from Ludwig-Maximilians Universität in Munich provided me with very valuable comments on some of my manuscripts, pointed out a number of potential pitfalls in my data that I would probably have missed without her, and suggested me the sixth chapter of this thesis. I also greatly benefited from many additional comments, suggestions that were made to me in discussions with Bronwyn Hall (UC Berkeley), Maria Isabella Leone (University of Bologna), Catalina Martinez (CSIC, Madrid), Azèle Mathieu (ULB), Gaétan de Rassenfosse (ULB), the participants in different conferences and seminars (most recently and significantly the AEA Conference in Strasbourg in June 2007, the EEA/ESEM Annual Congress in Budapest in August 2007, the EPIP Conference in Lund in September 2007 and the PATSTAT Conference in Venice in October 2007).

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considerably, but he also pointed out certain ambiguities in my phrasing and allowed me to clarify the views concerned.

From a material point of view, I am mainly indebted to two institutions, the Université Libre de Bruxelles (more specifically the Faculty of Social, Political and Economic Sciences and Solvay Business School) and the European Patent Office (EPO). The former provided me with the necessary framework, logistical means, and tools to conduct this research, and sponsored me during these years. The latter – and more particularly Wolfram Förster, head of its Controlling Office – granted me access to the necessary data and welcomed me regularly in its headquarters in Munich or in its offices in The Hague to interact with examiners and economists. I enjoyed and valued my contacts with the EPO personnel I met in Munich, in The Hague, or at different conferences, all of which improved my knowledge and understanding of the European patent system. In addition, I wish to thank the ULB, the EPO, the Centre for Economic Policy Research (CEPR) and the Marie-Christine Adam Foundation for financially supporting my participation in several congresses.

Finally, from a more personal point of view, a few people deserve my lasting gratitude. Bruno Van Weynbergh from ULB was extremely supportive in helping me carry out my extra- research duties at ULB. The whole team of the MBASolvay provided me with similar support when I was involved into the development and operations of the programme.

I also wish to thank Elena van Pottelsberghe for her warm welcome at their home in Munich each time I visited my supervisor at the EPO, and for her infinite patience during endless discussions on patents, as well as Erik Meijer for his support and for introducing me to key people and events around IP-related issues.

A great deal of gratitude is also due to my parents, Bernard and Joëlle van Zeebroeck, who always supported me in all my endeavours, as well as to my brothers, sisters, and friends for their constant encouragement and affection. Similar thanks go to my parents in law, the Esterzon clan, for their support, their welcome, and their care.

And finally, I wish to express my deepest gratitude to my fiancée, Emilie Esterzon. Her trust, love, energy, enthusiasm, presence, wisdom, humour, probity, intelligence and advice have become as essential to me as the air I breathe. Her careful reading of my manuscripts, her insights and ideas enabled me to overcome a number of difficulties. Her permanent support and understanding, her patience and her continuous interest for my research allowed me to remain focused and to progress.

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Executive Summary

1. The context: The European patent system has been affected by substantial changes over the past three decades, which have raised vigorous debates at different levels. The main objective of the present dissertation is to contribute to these debates through an exploratory analysis of different changes in patenting practices – in particular the way applications are drafted and filed to patent offices –, their drivers, association with the value of patents, and potential impact on the patent system. The coming essays are therefore empirical in their essence, but are inspired by economic motivations and concerns. Their originality is threefold:

it resides in the novelty of the main questions discussed, the comprehensive database specifically built to address them, and the range of statistical methods used for this purpose.

The main argument throughout these pages is that patenting practices have significantly evolved in the past decades and that these developments have affected the patent system and could compromise its ability to fulfil its economic purpose. The economic objective of patents is to encourage innovation and its diffusion through the public disclosure of the inventions made. But their exploitation in the knowledge economy has assumed so many different forms that inventors have supposedly developed new patenting and filing strategies to deal with these market conditions or reap the maximum benefits from their patents. The present thesis aims at better understanding the dimensions, determinants, and some potential consequences of these developing practices.

2. The evolution: Chapter 2 presents a detailed descriptive analysis of the evolution in the size of patent applications filed to the European Patent Office (EPO). In this chapter, we propose two measures of patent voluminosity and identify the main patterns in their evolution.

Based on a dataset with about 2 million documents filed at the EPO, the results show that the average voluminosity of patent applications – measured in terms of the number of pages and claims contained in each document – has doubled over the past 25 years. Nevertheless, this evolution varies widely across countries, technologies and filing procedures chosen by the applicant. This increasing voluminosity of filings has a strong impact on the workload of the EPO, which justifies the need for regulatory and policy actions.

3. The drivers: The evolution in patent voluminosity observed in chapter 2 calls for a multivariate analysis of its determinants. Chapter 3 therefore proposes and tests 4 different hypotheses that may contribute to explaining the observed inflation in size: the influence of national laws and practices and their diffusion to other countries with the progressive globalization of patenting procedures, the complexification of research activities and inventions, the emergence of new sectors with less established norms and vocabularies, and the construction of patent portfolios. The econometric results first reveal that the four hypotheses are significantly associated with longer documents and are therefore empirically supported. It appears however that the first hypothesis – the diffusion of national drafting practices through international patenting procedures – is the strongest contributor of all, resulting in a progressive harmonization of drafting styles toward American standards, which are longer by nature. The portfolio construction hypothesis seems a less important driver but nevertheless highlights substantial changes in patenting practices. These results raise two questions: Do these evolving patenting practices indicate more valuable patents? Do they induce any embarrassment for the patent system?

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of the art on patent value indicators and analyses several issues in their measurement and interpretation. Five classes of indicators proposed in the literature may be obtained directly from patent databases: the number of countries in which each patent is enforced, the number of years during which each patent has been renewed, the grant decision taken, the number of citations received from subsequent patents, and whether it has been opposed by a third party before the EPO. Because the former two measures are closely connected (the geographical scope of protection and length of maintenance can hardly be observed independently), they have been subjected to closer scrutiny in the first section of chapter 4, which shows that these two dimensions have experienced opposite evolutions. A composite measure – the Scope- Year Index – reveals that the overall trend is oriented downwards, which may suggest a substantial decline in the average value of patents. The second section of chapter 4 returns to the five initial classes of measures and underlines their main patterns. It appears that most of them witness the well-known properties of patent value: a severe skewness and large country and technology variations. A closer look at their relationships, however, reveals a high degree of orthogonality between them and opposite trends in their evolution, suggesting that they actually capture different dimensions of a patent’s value and therefore do not always pinpoint the same patents as being the most valuable. This result strongly discourages the reliance on one of the available indicators only and opens some avenue for the creation of one potential composite index of value based upon the five indicators to maximize the chances of capturing all potentially valuable patents in a large database. The proposed index reflects the intensity of the signal provided by all 5 constituting indicators on the potential value of each patent. Its declining trend reflects a rarefaction of this signal on average, leading to different plausible interpretations.

5. The links with patent value: Based upon the six indicators of value proposed in chapter 4 (the five classical ones plus the composite), the question of the association between filing strategies and the value of patents may be analysed. This question is empirically addressed in chapter 5, which focuses on all EPO patents filed between 1990 and 1995. The first section presents a comprehensive review of the existing evidence on the determinants of patent value.

The numerous contributions in the field differ widely along three dimensions (the indicator of value chosen as dependent variable, the sampling methodology, and the set of variables tested as determinants), which have translated into many ambiguities across the literature. Section 2 proposes measures to identify different dimensions of filing strategies, which are essentially twofold: they relate to the routes followed by patent filings toward the EPO (PCT, accelerated processing), and to their form (excess claims, share of claims lost in examination), and construction (by assembly or disassembly, divisional). These measures are then included into an econometric model based upon the framework provided by the literature. The proposed model, which integrates the set of filing strategy variables along with some of the classical determinants, is regressed on the six available indicators separately over the full sample. In addition, the sensitivity of the available results to the indicator and the sampling methodology is assessed through 18 geographic and 14 industrial clustered regressions and about 30 regressions over random samples for each indicator. The estimates are then compared across countries, industries and indicators. These results first reveal that filing strategies are indicative of more valuable patents and provide the most stable determinants of all. And second, they confirm some classical determinants in their positive association with patent value, but highlight a high degree of sensitivity of most of them to the indicator or the sample chosen for the analysis, requiring much care in generalizing such empirical results.

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6. The links with patent length: Chapter 6 focuses on one particular dimension of patent value: the length of patents. To do so, the censored nature of the dependent variable (the time elapsed between the filing of a patent application and its ultimate fall into the public domain) dictates the recourse to a survival time model as proposed by Cox (1972). The analysis is original in three main respects. First of all, despite the fact that renewal data have been exploited for about two decades to obtain estimates of patent value (Pakes and Schankerman, 1984), this chapter provides – to the best of our knowledge – the first comprehensive analysis of the determinants of patent length. Second, whereas most of the empirical literature in the field focuses on granted patents and investigates their maintenance, the analysis reported here includes all patent applications. This comprehensive approach is dictated by the provisional rights provided by pending applications to their holders and by the legal uncertainty these represent for competitors. And third, the model integrates a wide set of explanatory variables, starting with the filing strategy variables proposed in chapter 5. The main results are threefold: first, they clearly show that patent rights have significantly increased in length over the past decades despite a small apparent decline in the average grant rate, but largely due to the expansion of the examination process. Second, they indicate that most filing strategies induce considerable delays in the examination process, possibly to the benefit of the patentee, but most certainly to the expense of legal uncertainty on the markets. And third, they confirm that more valuable patents (more cited or covering a larger geographical scope) take more time to process, and live longer, whereas more complex applications are associated with longer decision lags, but also with lower grant and renewal rates.

7. Conclusions: The potential economic consequences and some policy implications of the findings from the dissertation are discussed in chapter 7. The evolution of patenting practices analysed in these works has some direct consequences for the stakeholders of the patent system. For the EPO, they generate a considerable increase in workload, resulting in growing backlogs and processing lags. For innovative firms, this phenomenon translates into an undesired increase in legal uncertainty, for it complicates the assessment of the limits to each party’s rights and hence of the freedom to operate on a market, which is precisely what the so- called ‘patent trolls’ and ‘submariners’ may be looking for. Although empirical evidence is lacking, some fear that this may result in underinvestment in research, development or commercialization activities (e.g. Hall and Harhoff, 2004). In addition, legal uncertainty is synonymous with an increased risk of litigation, which may hamper the development of SMEs and reduce the level of entrepreneurship. Finally, for society, we are left with a contrasted picture, which is hard to interpret. The European patent system wishes to maintain high quality standards to reduce business uncertainty around granted patents, but it is overloaded with the volume of applications filed, resulting in growing backlogs which translate into legal uncertainty surrounding pending applications. The filing strategies that contribute to this situation might reflect a legitimate need for more time and flexibility in filing more valuable patents, but they could also easily turn into real abuses of the system, allowing some patentees to obtain and artificially maintain provisional rights conferred by pending applications on inventions that might not meet the patentability requirements.

Distinguishing between these two cases goes beyond the scope of the present dissertation, but should they be found abusive, they should be fought for they consume resources and generate uncertainty. And if legitimate, then they should be understood and the system adapted accordingly (e.g. by adjusting fees to discourage some strategies, raising the inventive step, fine-tuning the statutory term in certain technologies, providing more legal tools for patent examiners to reject unpatentable applications, etc.) so as to better serve the need of inventors for legal protection in a more efficient way, and to adapt the patent system to the challenges it is or will be facing.

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Table of contents

ACKNOWLEDGEMENTS ... II EXECUTIVE SUMMARY ... IV TABLE OF CONTENTS ... VII LIST OF FIGURES ... IX LIST OF TABLES ... X

INTRODUCTION ... 1

CHAPTER 1-INTRODUCTION ... 2

1.1 Purpose of the thesis ... 3

1.2 The context ... 4

1.2.1 The economic justification of patents ... 4

1.2.2 Institutional framework: the European patent system ... 6

1.2.3 Patenting in the knowledge economy ... 7

1.3 Research objectives, methodology and structure ... 10

PART I: PATENTING PRACTICES AND THEIR DRIVERS ... 14

CHAPTER 2-ON THE EVOLUTION OF PATENT APPLICATIONS AT THE EPO ... 15

2.1 Research objectives ... 16

2.2 The inflation in patent volume ... 16

2.2.1 Measurement issues ... 18

2.2.2 Explanatory factors ... 24

2.2.3 The potential cost of patent voluminosity ... 34

2.3 Concluding remarks ... 40

CHAPTER 3-THE DETERMINANTS OF PATENT VOLUME ... 41

3.1 Research objectives ... 42

3.2 The voluminosity of applications and its determinants ... 42

3.2.1 Inflation in patent applications’ voluminosity ... 44

3.2.2 Hypotheses on the determinants of patent voluminosity ... 47

3.2.3 Empirical results ... 54

3.3 Concluding remarks ... 70

PART II: PATENTING PRACTICES AND PATENT VALUE ... 73

CHAPTER 4-ISSUES IN MEASURING PATENT VALUE ... 74

4.1 Research objectives ... 75

4.2 A two-dimensional approach: the Scope-Year Index ... 76

4.2.1 Measurement issues ... 77

4.2.2 The Scope-Year Index ... 85

4.2.3 Preliminary conclusions ... 90

4.3 A state of the art on value indicators ... 91

4.3.1 Value indicators: what are they and what do they tell us? ... 92

4.3.2 Puzzling value indicators ... 102

4.4 Toward a composite indicator of patent value ... 110

4.5 Concluding remarks ... 116

CHAPTER 5-PATENTING PRACTICES AND THE VALUE OF PATENTS ... 118

5.1 Research objectives ... 119

5.2 Patenting practices as determinants of patent value ... 119

5.2.1 The literature on patent value ... 122

5.2.2 Filing strategies... 128

5.2.3 Empirical implementation... 135

5.2.4 Empirical results ... 140

5.3 Concluding remarks ... 152

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CHAPTER 6-ON THE DETERMINANTS OF PATENT LENGTH ... 155

6.1 Research objectives ... 156

6.2 The determinants of patent life ... 157

6.2.1 Institutional framework ... 160

6.2.2 Descriptive statistics ... 164

6.2.3 Potential explanatory factors ... 172

6.2.4 Empirical implementation... 175

6.2.4 Empirical evidence on the determinants of patent length ... 180

6.3 Concluding remarks ... 203

CONCLUDING REMARKS ... 206

CHAPTER 7-CONCLUDING REMARKS ... 207

7.1 Concluding summary ... 208

7.2 Avenues for further research ... 212

7.3 Some implications for IP policies ... 214

REFERENCES ... 221

List of References ... 222

APPENDICES ... 234

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FIGURE 1.1STRUCTURE OF THE DATA SOURCES USED IN THE DISSERTATION ... 11

FIGURE 1.2SYNOPSIS OF THE DISSERTATION ... 12

FIGURE 2.1AVERAGE NUMBER OF CLAIMS AND PAGES IN INCOMING APPLICATIONS AT EPO(1980-2004) ... 22

FIGURE 2.2STATUS OF APPLICATIONS AT THE EPO BY YEAR OF FILING AS ON JANUARY 2006 ... 23

FIGURE 2.3NUMBER OF CLAIMS IN EPO APPLICATIONS ... 24

FIGURE 2.4NUMBER OF PAGES IN EPO APPLICATIONS ... 25

FIGURE 2.5NUMBER OF CLAIMS IN PCT AND EURO-DIRECT APPLICATIONS (2000-2004) ... 26

FIGURE 2.6CLAIMS AND PAGES BY NUMBER OF PRIORITIES IN EPO APPLICATIONS (1989-2000) ... 27

FIGURE 2.7AVERAGE SIZE AND NUMBER OF EPO APPLICATIONS ACCORDING TO PRIORITY COUNTRIES ... 30

FIGURE 2.8CLAIMS AND PAGES BY NUMBER OF 8 DIGITS-IPC CLASSES IN EPO APPLICATIONS (1989-2000) ... 32

FIGURE 2.9CLAIMS AND PAGES BY NUMBER OF INVENTORS IN EPO APPLICATIONS (1989-2000) ... 33

FIGURE 2.10AVERAGE SIZE OF EPO APPLICATIONS ACCORDING TO DIFFERENT JOINT SECTORS ... 33

FIGURE 2.11AVERAGE TIME TO GRANT DECISIONS BY SIZE OF INITIAL APPLICATION ... 34

FIGURE 2.12STATUS OF APPLICATIONS ACCORDING TO THE NUMBER OF CLAIMS IN INITIAL APPLICATIONS ... 35

FIGURE 2.13STATUS OF APPLICATIONS ACCORDING TO THE NUMBER OF PAGES IN INITIAL APPLICATIONS ... 36

FIGURE 2.14NUMBER OF CLAIMS IN US APPLICATIONS OF US ORIGIN AND EP FILINGS OF US ORIGIN ... 38

FIGURE 3.1FREQUENCY DISTRIBUTION OF CLAIMS AND PAGES (1988-2002) ... 56

FIGURE 3.2AVERAGE VOLUMINOSITY OF EPO APPLICATIONS ACCORDING TO PRIORITY COUNTRY... 62

FIGURE 4.1THE INSTITUTIONAL EXPANSION OF THE EPO ... 79

FIGURE 4.2FREQUENCY OF VALIDATION AND MARKET SIZE ... 80

FIGURE 4.3FREQUENCY OF VALIDATION AND AVERAGE MAINTENANCE PER MEMBER STATE ... 81

FIGURE 4.4GEOGRAPHICAL SCOPE AT DIFFERENT POINTS IN A PATENTS LIFETIME BY YEAR OF FILING ... 82

FIGURE 4.5GEOGRAPHICAL SCOPE AFTER 10 YEARS OF MAINTENANCE ... 83

FIGURE 4.6AVERAGE SCOPE OF EPO PATENTS AT DIFFERENT POINTS IN TIME (1980-85 FILINGS) ... 84

FIGURE 4.7THE SCOPE-YEAR INDEX ... 86

FIGURE 4.8THE SCOPE-YEAR INDEX, BY TECHNOLOGICAL FIELD ... 87

FIGURE 4.9THE SCOPE-YEAR INDEX, BY COUNTRY OF APPLICANT ... 88

FIGURE 4.10EVOLUTION OF VALUE INDICATORS OF EPOAPPLICATIONS (1980=100%) ... 103

FIGURE 4.11EVOLUTION OF VALUE INDICATORS OF EPOAPPLICATIONS (1980=100%) ... 104

FIGURE 4.12AVERAGE VALUE BY COUNTRY OF APPLICANT (EPO1995FILINGS US=100) ... 106

FIGURE 4.13AVERAGE VALUE BY TECHNOLOGY CLUSTER (EPO1995FILINGS IND.CHEMISTRY =100)... 107

FIGURE 4.14MAP OF THE VALUE OF PATENT APPLICATIONS FILED TO THE EPO BETWEEN 1990 AND 1995 ... 109

FIGURE 4.15MAP OF THE VALUE OF PATENT APPLICATIONS FILED TO THE EPO IN 1990 AND 1991 ... 110

FIGURE 4.16FREQUENCY DISTRIBUTION OF THE COMPOSITE INDICATOR ... 113

FIGURE 4.17AVERAGE COMPOSITE VALUE BY COUNTRY OF APPLICANT (APPLICATIONS FILED IN 1995) ... 114

FIGURE 4.18AVERAGE COMPOSITE VALUE BY TECHNOLOGY CLUSTER (APPLICATIONS FILED IN 1995) ... 114

FIGURE 4.19EVOLUTION OF THE COMPOSITE INDEX AND THE NATIONAL PROPENSITY TO PATENT ... 115

FIGURE 5.1EVOLUTION OF PATENT FILING STRATEGIES AT THE EPO(1980-1995) ... 134

FIGURE 5.2EVOLUTION OF PATENT VALUE INDICATORS 1990-1995 ... 137

FIGURE 5.3EVOLUTION OF THE COMPLEXITY OF PATENT APPLICATIONS ... 138

FIGURE 5.10STABILITY OR INSTABILITY OF EXPLANATORY VARIABLES ... 152

FIGURE 6.1OVERVIEW OF INSTITUTIONAL FRAMEWORK AND RELATED EMPIRICAL STUDIES ... 160

FIGURE 6.2POSSIBLE TRAJECTORIES OF EUROPEAN PATENTS ... 161

FIGURE 6.3GRANTING PROCESS AT THE EPO ... 162

FIGURE 6.4EVOLUTION OF EPOPATENT APPLICATIONS ENTIRE LIFE (FROM FILING TO LAPSE) ... 166

FIGURE 6.5EVOLUTION OF EPOPATENTS ENTIRE LIFE (FROM FILING TO LAPSE) ... 167

FIGURE 6.6SHARE OF GRANTED PATENTS MAINTAINED AT THE END OF EACH YEAR FROM THEIR FILING DATE 168 FIGURE 6.7SHARE OF EPO PATENT APPLICATIONS PENDING 10 YEARS OR MORE ... 168

FIGURE 6.8EVOLUTION OF THE NUMBER OF FILINGS AND THE AVERAGE GRANT RATE AT EPO ... 169

FIGURE 6.9AVERAGE NUMBER OF COMMUNICATIONS PER FILING (PENDING APPLICATIONS EXCLUDED) ... 170

FIGURE 6.10DECISIONS ON PATENT APPLICATIONS FILED TO THE EPO ... 171

FIGURE 6.11OPPOSITION RATE AT THE EPO ... 171

FIGURE 6.12ESTIMATES OF THE SURVIVAL AND HAZARD FUNCTIONS (ENTIRE LIFE) ... 177

FIGURE 6.13ESTIMATES OF THE SURVIVAL FUNCTION (ENTIRE LIFE) BY CATEGORICAL VARIABLES ... 181

FIGURE 6.14GOODNESS OF FIT OF THE STRATIFIED COX MODEL (ENTIRE LIFE) ... 187

FIGURE 6.15GOODNESS OF FIT OF THE STRATIFIED COX MODEL WITH TIME-VARYING COVARIATES ... 190

FIGURE 6.16TIME TO GRANT DECISIONS BY NUMBER OF PAGES IN INITIAL APPLICATION (1978-1996) ... 192

FIGURE 7.1LOGICAL SCHEMA OF THE DISSERTATION ... 211

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List of tables

TABLE 2.1POTENTIAL VOLUMINOSITY INDICATORS ... 18

TABLE 2.2CORRELATIONS BETWEEN VOLUMINOSITY INDICATORS ... 19

TABLE 2.3LANGUAGES OF FILING AT EPO BY COUNTRY OF APPLICANT (%) ... 29

TABLE 2.4SHARE OF PRIORITY COUNTRIES IN LARGEST APPLICATIONS ... 31

TABLE 2.5NUMBER OF CLAIMS AND PAGES IN PCT AND NON-PCT FILINGS BY COUNTRY OF PRIORITY ... 31

TABLE 3.1SUMMARY STATISTICS OF VOLUMINOSITY INDICATORS (ENDOGENOUS VARIABLES) ... 46

TABLE 3.2SUMMARY STATISTICS OF EXOGENOUS VARIABLES ... 50

TABLE 3.3LIST OF EXOGENOUS VARIABLES ... 55

TABLE 3.4EXPLANATORY POWER OF THE 4 HYPOTHESES (ADJUSTED OF THE OLS MODELS) ... 58

TABLE 3.5ECONOMETRIC ESTIMATES OF EQUATION 3.1(NEGATIVE BINOMIAL REGRESSIONS) ... 59

TABLE 3.6CONTRIBUTIONS OF ENDOGENOUS VARIABLES TO THE GROWTH IN NUMBER OF CLAIMS AND PAGES . 68 TABLE 4.1MAIN INDICATORS OF PATENT VALUE IN THE LITERATURE ... 93

TABLE 4.2SUMMARY STATISTICS OF PATENT VALUE INDICATORS OVER THE PERIOD 1980-2002 ... 94

TABLE 4.3RENEWAL RATES AND OPPOSITION OUTCOMES ... 102

TABLE 4.4SPEARMANS RANK CORRELATION MATRIX OF PATENT VALUE INDICATORS ... 107

TABLE 4.5DESCRIPTIVE STATISTICS OF THE COMPOSITE INDICATOR ... 113

TABLE 5.1TYPOLOGY OF PATENT VALUE INDICATORS IN THE LITERATURE ... 123

TABLE 5.2TYPOLOGY OF THE EMPIRICAL LITERATURE ON PATENT VALUE ... 124

TABLE 5.3TYPOLOGY OF PATENT VALUE DETERMINANTS ... 125

TABLE 5.4EMPIRICAL EVIDENCE ON VALUE INDICATORS SO FAR (AS OF MAY 2007) ... 128

TABLE 5.5SUMMARY STATISTICS OF FILING STRATEGIES VARIABLES ... 129

TABLE 5.6SUMMARY STATISTICS OF VALUE INDICATORS (DEPENDENT VARIABLES) ... 136

TABLE 5.7ECONOMETRIC ESTIMATES FOR THE 6 INDICATORS OF PATENT VALUE ... 142

TABLE 6.1SUMMARY STATISTICS OF PATENT LIFE INDICATORS ... 165

TABLE 6.2OVERVIEW OF EXPLANATORY VARIABLES USED IN ECONOMETRIC ESTIMATIONS ... 172

TABLE 6.3SUMMARY STATISTICS OF POTENTIAL EXPLANATORY FACTORS ... 173

TABLE 6.4LIFE TABLE OF EPO APPLICATIONS ENTIRE LIFE (IN YEARS) ... 176

TABLE 6.5TEST FOR TREND IN SURVIVAL FUNCTION OVER ENTIRE LIFE ... 183

TABLE 6.6ECONOMETRIC ESTIMATES OF PATENT LIFE ... 185

TABLE 6.7TEST OF THE PHASSUMPTION IN ENTIRE LIFE MODEL ... 189

TABLE 6.8TEST FOR TREND IN SURVIVAL FUNCTION OVER OPPOSITION AND OUTCOMES ... 193

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“I wish your efforts all possible success in the service of art; it is that and science alone which point the way, and lead us to hope for a higher life.”

Ludwig van Beethoven*

________________________

* Beethoven, L. van (1824), Letter to M. Schott, Baden near Vienna, September 17.

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Introduction

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Chapter 1 - Introduction

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CHAPTER 1-INTRODUCTION

“Patents should draw a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. Patents are, after all, government-enforced monopolies and so there should be some ‘embarrassment’ (and hesitation) in granting them.”

Thomas Jefferson1

1.1 Purpose of the thesis

The patent system is at the crossroads. Patents have become the focal point of an increasing number of litigation cases with major economic consequences,2 record patent license or cross- license deals are regularly announced, and patents frequently make the headlines in the newspapers. This booming interest for patents has also translated into an unprecedented growth in the number of applications filed to patent offices throughout the world (a 150%

increase at the European Patent Office (EPO)3 between 1995 and 2005).

At the same time, the patent system is intensively debated and questioned around the world on several grounds. Criticism includes the fact that the system seems unable to master the flood of applications, resulting in increasing delays in the granting process and higher legal uncertainty on the markets; that it may hamper substantial academic research efforts because of an anti-commons effect (Heller and Eisenberg, 1998); that it is unaffordable for SMEs and independent inventors; that the risks and costs associated with legal disputes may hinder the level of entrepreneurship activity; that some new technologies (software, genetic inventions, living varieties, etc.) should be kept outside the scope of patentable subject matter; that patents of dubious validity are regularly issued; and that patents are increasingly exploited for strategic purposes in a way that may be detrimental to competition and innovation.

The main objective of the present dissertation is to contribute to this debate with a series of essays presenting an empirical analysis of different aspects of the European patent system and the way it has evolved since the early eighties. More specifically, this dissertation will focus on the way inventors patent at the EPO provided they have chosen to do so.4 It will investigate several developments in patenting practices and their relation with the value of patents.

1 Jefferson, T. (1813), Letter to Isaac McPherson. See Mossoff (2007) for a provocative discussion around this well-known statement.

2 See e.g. RiM vs. NTP, largely discussed in Guellec and van Pottelsberghe (2007).

3 Established by the Convention on the Grant of European Patents (EPC) signed in Munich 1973, the EPO is the outcome of the European countries’ collective political determination to establish a uniform patent system in Europe. The EPO was set up by the contracting states to the EPC with the aim of strengthening co-operation between the countries of Europe in the protection of inventions. This was achieved by adopting the EPC, which makes it possible to obtain such protection in several or all of the contracting states by a single patent grant procedure, and establishes standard rules governing the treatment of patents granted by this procedure. By filing a single application in one of the three official languages (English, French and German) it is possible to obtain patent protection in some or all of the EPC contracting states. The resulting patent is, however, not a single patent but rather a bundle of national patents. Guellec and van Pottelsberghe (2007) provide an in-depth description of the European patent system.

4 Therefore, we will not discuss why firms innovate or why they patent (or not).

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The main argument throughout this dissertation is that patenting practices – in particular the way applications are drafted and filed to the EPO – have substantially evolved in the past decades and that these developments have affected the patent system and may compromise its ability to fulfil its economic purpose.

The originality of this dissertation is threefold. Its first contribution resides in the three questions that will be addressed empirically: What are the drivers behind the developments of new filing strategies? Are these strategies associated with more valuable patents? What is their impact on granting procedures? The second originality of this dissertation comes from the data and methods that will be used to investigate these questions. To address them, a comprehensive database has been built covering all applications filed to the EPO over a 25- year period (between 1980 and 2004), which represents about 2 million observations. This dataset will be analysed using a wide range of multivariate econometric methods, including probit models, count models, and survival time analysis.

In this sense, this thesis is essentially exploratory. It is empirical in its essence, but is inspired by economic motivations and concerns. These motivations come from the major changes that have been observed in patent systems over the past two or three decades. The next section will therefore briefly summarize the foundations, structure, and evolution of the European patent system, in order to sketch the context of this dissertation.

1.2 The context

1.2.1 The economic justification of patents

Patents are at the very heart of innovation policies and it would be difficult to analyse patents or patenting practices without first recalling the economic objectives of these legal instruments. It is in the interest of society that inventions be made, for they contribute to consumer and social welfare by providing new or higher quality products, or by enabling cheaper production processes, and that the inventions made are diffused to further contribute to the advancement of science and techniques, generating spillovers.

Knowledge – presumably the most valuable resource in today’s economy – has two main characteristics: it is non-excludable (an author cannot prevent his readers from sharing his text with others or from using the information it contains) and non-rival (the use of a knowledge asset by someone does not prevent another person from using it, in other words it cannot be consumed) (Romer, 1990a; Greenhalgh and Rogers, 2007). A good is excludable if someone with a property right can prevent others from taking advantage of it. For a rival good, possession ensures excludability, but for non-rival goods such as knowledge, it is much more difficult to enforce property rights (Romer, 1990b).5

5 Note that Greenhalgh and Longland (2005) show that knowledge is actually characterised by a rapid depletability due to subsequent or substitute innovations and that excludability – even with patents – is difficult to obtain and enforce.

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CHAPTER 1-INTRODUCTION

These two characteristics make it very unattractive to produce knowledge, or in the particular context of this work, to innovate. On the one hand, a low level of appropriation of inventions (or excludability) might lead to a disincentive effect. If people know that their inventions will be exploited by a third party who has not invested any money into the research that has led to those inventions and therefore does not have to recoup any investment, they will be reluctant to incur the costs of performing the necessary research activities (Arrow, 1962; Spence, 1984). The result could be that many inventions will never be made or commercialized. On the other hand, low levels of excludability lead to higher spillovers between firms (Veugelers and Cassiman, 1999), i.e. to a better diffusion.

The challenge for society therefore consists of making knowledge excludable (in order to allow inventors to recoup their investments and profit from their own innovations), while keeping it non-rival (to allow the diffusion of knowledge and allow research efforts to be pursued on the invention) (Romer, 1990b). Patents can solve these two issues in a sequential way: they grant inventors a temporary right to exclude others from exploiting their inventions – leading to a deadweight loss for society – in exchange for the public disclosure of their product or process (patents are published no later than 18 months after their filing). This way, patents balance the interest of inventors and consumers sequentially, a welfare loss during a limited period of time (due to the monopolistic power of the inventor) in exchange for the disclosure and diffusion of the invention to the long-term benefit of society.6 Patents therefore act as an incentive mechanism both to invent and to diffuse inventions.7

However, European patents8 actually offer two distinct benefits to their holders: they grant them a right to exclude others from the market, but also offer them the guarantee that their invention will never be patented by anyone else. Indeed, as soon as a patent application has been published – no matter whether it has been examined or granted or not –, it becomes an integral part of the state of the art that the world will never get rid of. The former effect – the exclusive rights – is presumably acquired if and only if a patent has been granted and validated in some countries and is only enforceable in these countries. Nonetheless, the European Patent Convention (EPC) provides that a patent application under review at the EPO entitles its applicant similar rights as those provided by a valid patent grant, which are enforceable in all countries designated by the applicant.9 Therefore, a pending application readily entitles its holder with some provisional exclusive rights (though probably more difficult to enforce as the claimed scope of protection has not yet been validated by the office), and the mere filing of a patent application at the EPO produces major legal effects.

6 Nordhaus (1969) has formally analysed this trade-off between encouraging innovation to benefit society and suffering the consequences of a temporary monopoly (see also Greenhalgh and Rogers, 2007).

7 See Scherer (2001), Dixon and Greenhalgh (2002) and Guellec and van Pottelsberghe (2007) for more detailed discussions on the economic justification of patents. However, the efficiency of patent systems in encouraging innovation and its diffusion has been discussed by different scholars but goes beyond the scope of the present dissertation (see e.g. Levin et al., 1987; Cohen et al., 2000; Arundel and Kabla, 1998; Licht and Zolz, 1998).

8 In the remainder of the dissertation, we will refer to patents granted by the EPO as “European patents”.

9 Article 67, EPC.

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1.2.2 Institutional framework: the European patent system

In order to obtain these benefits from patent protection in Europe, an inventor must draft and file an application either to the national patent office of all European States where he would like his invention to be protected, or to the EPO, which offers a centralised granting procedure for inventors seeking patent protection in different European countries.10 Once an inventor gets a patent grant from the EPO, he still has to translate and validate it in all European countries where he would like his patent to be enforced.11 Failure to provide the required translation and validation fees in due time in a given country renders the patent unenforceable there. Due to the costs induced by these multiple translations and validation fees, many patents accepted for grant by the EPO are in fact never validated at all (about 5% of all patents granted), and most of them are validated only in some of the countries originally designated.

When a patent has been validated in different countries, the result for the holder is not a single European patent per se, but rather a bundle of national patents, which need to be maintained every year (for up to twenty years) in each country against payment of renewal fees, and which will need to be enforced separately in each country. Should a patent holder be willing to sue a third party who is allegedly infringing his rights, he would have to file an action before all jurisdictions where the patent has been validated and where the infringement has been suspected. This would of course induce considerable expenses.

However, in order to be accepted for grant, a patent application at the EPO must fulfil the patentability requirements provided by the EPC. These legal provisions actually define the metes and bounds of the patentable territory that may be appropriated (by drawing the line between the inventions that may be granted a patent and those that are not), and determine the amount of technological territory that may be protected by a single document as well as the maximum duration for patent rights. These design parameters of the patent system must be fine-tuned in order for the system to adequately fulfil its economic objectives In this respect, there are four main dimensions that need to be adjusted by law and procedural practice: the patentable subject matter, the inventive step, the technological breadth and the length.12

The optimal setting of these four dimensions has been widely discussed in the literature from a theoretical point of view. Major contributions in this respect are found in Boldrin and Levine (2002), Cornelli and Schankerman (1999), Gallini (1992), Gilbert and Shapiro (1990), Greene and Scotchmer (1995), Kamien and Tauman (1986), Klemperer (1990), Kremer (1998), Merges and Nelson (1990), O’Donoghue et al. (1998), Scotchmer (1999), Scotchmer and Green (1990), and Teece (1986, 2006). The common denominator of this literature was a dissection of all dimensions of the patent system and a discussion on the potential effects that a change in one design parameter could have on R&D, innovation, competition or growth.

10 See section A1.1 in the appendix for a more detailed overview of the European patent system.

11 Note that the recently adopted London Protocol will soon reduce the obligations in terms of translations.

12 See section A1.2 in the appendix as well as Guellec and van Pottelsberghe (2007), Chapter 5, for discussions on these dimensions.

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CHAPTER 1-INTRODUCTION

This allowed these authors to provide some guidance on the optimal level of each dimension for the patent system to achieve its mission.

However, for a given configuration of the system, its effects may be affected by the use that is made of patents in practice, and past decades have only brought major developments in their exploitation on the markets.

1.2.3 Patenting in the knowledge economy13

In today’s economy, knowledge has become one of the most precious assets and its legal appropriation is therefore the subject of intense rivalry. As the main instrument to legally appropriate industrial knowledge (copyrights protect artistic creations, designs and models cover industrial forms, and trademark law protects brands and the identity of their owners), patents have become increasingly critical in many industries (see e.g. Hall and Ziedonis, 2001).

As a result, patents seem to be at the centre of a new kind of gold rush: public and private institutions are struggling to get hold of the largest possible share of the knowledge cake before anyone else does. Patents provide innovative firms or ventures with the opportunity to gain an advantage over their competitors, but there are various ways in which this market advantage can be used, beyond directly extracting a rent from customers: to restrain the power of suppliers by owning key technology elements in another part of the value or technological chain, to “freeze” a technology by preventing its exploitation, to guarantee the holder’s freedom to invent by securing in advance the possibility to exploit an invention in the future, to build negotiating power for the acquisition of complementary inventions or for easier access to the market, to set up “picket fences” around a competitor’s patent and force him to concede a cross license, to avoid being invented or patented around, to secure freedom to operate and avoid potential litigation, to prevent others from acquiring IP rights by filing defensive applications that they drop into the public domain once published, to “create a smoke screen” by filing applications on technologies that will not be exploited by the company, but may disturb or deceive competitors, to improve the company’s image, to serve as a collateral for loans or as proof of credibility for potential investors, or to generate direct financial revenues through licensing, resale, or securitization.

All these tactics, often dictated by strategic reactions to the behaviour of competitors, induce more patent applications. The influence of market forces is well illustrated by the semiconductor industry where the enormous financial consequences of the potential injunction of a pending patent litigation to shut down a manufacturing plant – even for a very short period of time – urge industry players to file patents, which are necessary as a dissuasive bargaining instrument. Similarly, patents are sometimes necessary as an exchange currency to access a specific third-party technology, which can only be traded against other IP rights.

13 This section draws from Guellec, D., B. van Pottelsberghe and N. van Zeebroeck (2007), Patent as a market instrument, in Guellec D. and B. van Pottelsberghe, The Economics of the European Patent System, Oxford University Press, 2007, pp. 85-113. See also Greenhalgh and Rogers (2007).

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