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ISSN 1045-6333
HARVARD
JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS
THE CASE FOR REGISTERING PATENTS
AND THE LAW AND ECONOMICS OF
PRESENT PATENT-OBTAINING RULES
F. Scott Kieff
Discussion Paper No. 415
04/2003
Harvard Law School
Cambridge, MA 02138
This paper can be downloaded without charge from:
The Harvard John M. Olin Discussion Paper Series:
.edu/programs/olin_center/
The Social Science work Electronic Paper Collection:
http://papers./abstract_id=392202
This paper is also Paper No. 03-4-3 in the
Washington University School of Law Faculty Working Paper Series
JEL CLASSIFICATIONS: K11, K21, K22,
K23, K39, K41, L40, O31, O34, P14
THE CASE FOR REGISTERING PATENTS AND THE
LAW AND ECONOMICS OF PRESENT PATENT-OBTAINING RULES
F. Scott Kieff *
Abstract
The legal rules for determining whether an inventor is entitled to a patent are presently
enforced in the first instance by the Patent Office through ex parte examination of patent
applications. Critics of various aspects of the patent system suggest that these rules should be
ratcheted up in some way, subjecting patents to more scrutiny during Patent Office examination.
Departing from existing literature, this paper offers a hypothetical model system under which
patent applications are merely registered, not examined, to show how hard look approaches like
examination increase social costs over soft look approaches like registration. The paper presents
a new normative view of present positive law rules for obtaining patents that sees these rules as
primarily operating to minimize social cost, and accounts for otherwise puzzling aspects of the
patent system. This “registration” theory for the patent-obtaining rules is panion to the
“commercialization” theory for the patent-enforcing rules presented in prior work by