Loopholes of Creative Obstruction: The Strategic Gaming of Patent Claims and Families

Luis Rios, Purdue University Krannert School of Management, and Deborah Anderson, Saïd Business School

Abstract: This will be a mixed-methods study exploring, for the first time, ways in which firms exploit technicalities in the U.S. patent system with regard to number of claims and continuations. While at first blush this may sound like a technical paper targeting a patent policy audience, it actually will tell us a lot about the revealed strategic positions of hundreds of innovative firms and institutions. As well, it can help us understand much better how firms use patents to secure protected positions. In brief, the project will use a novel methodology combining archival historical case data and patent data, while exploiting a 2007 policy change, to develop insights into what various stakeholders were weighing as they navigated an important change in patent policy. By observing both what firms said in letters to the USPTO and what they actually did in terms of the types of patents they filed before and after the proposed change, we can can glean a better insight into their strategies.