Intellectual property experts have long wondered about the variety of external factors that may cross the minds of patent examiners during deliberation. A recent collaboration between Cornell University professor Michael Frakes and University of Illinois professor Melissa Wasserman may have added new intrigue to the debate, with research suggesting that the structure of the U.S. Patent and Trademark Office's funding framework may play a significant role in the patent approval process.
Frakes and Wasserman analyzed data sets before and after 1991 - the year in which the USPTO became primarily funded by user fees - to derive the first empirical study of its kind.
"Our findings suggest that the agency's fee structure biases the PTO toward granting patents," the researchers concluded. "The evidence is [also] consistent with a view that distortions in the PTO granting patterns are more likely to occur when the agency is financially constrained."
As PatentlyO contributor Jason Rantanen noted, this could be creating unintended bias, such as the tendency to grant patents associated with larger enterprises over the applications of smaller firms.
This research may add a new layer of debate over the USPTO's recently released proposals for a revised fee structure. It is interesting to note, for example, that patent maintenance fees are on track to grow by 42 percent, 26 percent and 61 percent between the third and 12th years of a patent's lifecycle.