Post-Grant Reviews in the U.S. Patent System - Design Choices and Expected Impact

TLDR

Policy review boards have called for post‑grant review mechanisms in the U.S. patent system. The paper examines declining U.S. patent quality, evaluates the potential impact of post‑grant review mechanisms, and offers design recommendations for policymakers.

Abstract

Several policy review boards have advocated the introduction of post-grant review mechanisms in the U.S system. We discuss to what extent patent quality has been deteriorating in the U.S. system and then consider the expected impact of post-grant review mechanisms as advocated by the policy review boards. We take a detailed look at the experience with the opposition mechanism at the European Patent Office. Our results indicate that a properly designed U.S. post-grant review could generate high welfare gains. We also discuss the design choices faced by policymakers in the United States and provide recommendations.