Journal Article

Improving patent incentives and enforcement

Mark Schankerman

in Journal of Intellectual Property Law & Practice

Volume 4, issue 11, pages 798-808
Published in print November 2009 | ISSN: 1747-1532
Published online September 2009 | e-ISSN: 1747-1540 | DOI:
Improving patent incentives and enforcement

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  • Arbitration
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Legal context

This paper examines the argument that patenting has become an impediment to innovative activity, rather than the incentive it was originally designed to be.

Key points

Using economic analysis and empirical evidence, I take up three main issues: deterioration in the quality of patents issues, with ‘weak patents’ unlikely to be enforced by courts if challenged; patent thickets, where firms must secure license agreements from many patentees in order to undertake R&D; and the costs of enforcing patent rights.

Practical significance

The analysis leads to five main policy recommendations: 1) an opposition procedure in the patent office, 2) a mechanism for third-party provision of information on relevant prior art, 3) a substantial increase in patent renewal fees to generate a progressive tax on patent rights, 4) an effective, market-based system of patent litigation insurance, and 5) a centralized patent court to increase predictability of patent enforcement.

Journal Article.  7872 words.  Illustrated.

Subjects: Arbitration ; Intellectual Property Law

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