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Study: Lenient Patent Examiners May Have Caused Patent Trolls

Who gave birth to the dreaded Patent Troll?

Was it Greed? Was it Opportunity? Was it the Jabberwocky?

No, according to a new study, it was the Lenient Patent Examiner. Patent trolls, economists say, were born at the U.S. Patent and Trademark Office.

"Patent Assertion Entities"

Harvard economist Josh Feng and Xavier Jaravel of the London School of Economics give new meaning to the words "patent trolls," the derisive term used to describe firms that make money by threatening patent lawsuits rather making products with their patents. The scholarly name for "Patent Trolls" is "Patent Assertion Entities."

In economics language that rivals Lewis Carroll's creative tale, Feng and Jaravel say "much of the heterogeneity in patent outcomes, such as patent value, citations and litigation, is caused by the way patent rights are crafted, rather than by heterogeneity in idea quality."

The result? Patent Trolls. Or Jabberwocky. Or as Ars Technica translated: "So-called patent trolls disproportionately purchase and assert patents that were granted by 'lenient' examiners."

"Patent examiners don't just decide whether or not to approve a patent," Timothy Lee writes. "They're also supposed to narrow a patent's claims to make sure it only covers what the inventor actually invented."

How Patent Suits Are Born

Feng and Jaravel say patent examiners who demand the fewest changes to patent claims account for a disproportionate share of patents that turn into patent lawsuits.

According to the report, examiners who are more "lenient" than average are "63 percent more likely to be purchased by a patent enforcement entity and 64 percent more likely to be involved in litigation."

Ars Technica has followed the trail for a while. It reported on a similar study last year, which said that patent examiners increasingly do less thorough reviews. That's why "so many bogus patents get approved."

So that's where that rabbit hole goes.

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