Examiner trust in applicants to the European Patent Office: country specificities

Joaquín M. Azagra-Caro,Elena M. Tur

doi:10.1007/s11192-018-2894-4

Abstract

Indicators based on the probability of applicant citations in patents have been used to emphasize the importance of distinguishing applicant and examiner citations. However, the interpretation of these indicators and of the presence of applicant citations in European Patent Office (EPO) examiner reports is still uncertain. Based on interviews with patent examiners and patent applicants, we develop the idea that applicant citations in EPO examiner reports indicate examiner trust in applicants, and that this trust varies according to national patterns. Using EPO data for over 3,500,000 citations during 1997–2007, we verify that examiner trust in applicants is higher in granted patents. Examiners trust applicants from scientifically or economically strong countries, from member states of the European Patent Organization, and from the same country of the examiners.

Highlights

Indicators based on the probability of applicant citations in patents have been used to emphasize the importance of distinguishing applicant and examiner citations
The European patent system does not impose a duty of candor, so applicants need not include all citations to the literature, and the number of applicant citations is much lower in European Patent Office (EPO) than in United States Patent and Trademark Office (USPTO) patents (Criscuolo and Verspagen 2008; Azagra-Caro et al 2011)
Based on these differences between USPTO and EPO, in this paper we propose a new interpretation of the probability of applicant citation: an applicant citation in an EPO examiner report indicates examiner trust in the applicant

Summary

Introduction

Indicators based on the probability of applicant citations in patents have been used to emphasize the importance of distinguishing applicant and examiner citations. At the USPTO, if a third party can prove that the applicant deliberately hid or withheld relevant information, the patent becomes unenforceable This creates an incentive for applicants to the USPTO to include more citations in their applications, i.e. to put ‘effort’ into prior art search. The European patent system does not impose a duty of candor, so applicants need not include all citations to the literature, and the number of applicant citations is much lower in EPO than in USPTO patents (Criscuolo and Verspagen 2008; Azagra-Caro et al 2011). In the EPO case, applicant citations are those included by the applicant in the description of the invention and considered relevant by examiners in their reports (Criscuolo and Verspagen 2008)

Objectives

Results

Conclusion