OECD Science, Technology and Industry Working Papers
The OECD Directorate for Science, Technology and Innovation (STI) leads OECD research on the contribution of science, technology and industry to well-being and economic growth. STI Working Papers cover a broad range of topics including definition and measurement of science and technology indicators, global value chains, and research on policies to promote innovation. These technical or analytical working papers are prepared by staff or outside consultants to share early insights and elicit feedback.
- ISSN: 18151965 (online)
- https://doi.org/10.1787/18151965
Pre-Emptive Patenting
Securing Market Exclusion and Freedom of Operation
We investigate statistically the characteristics, functioning and incidence of pre-emptive patenting,
defined as patent filings whose main effect is to hamper the grant of other patents. Patent applications can
be used to prevent the grant of exclusive rights on markets and technologies to others in order to ensure
freedom of operation to their holder or keep patent-less competitors out of the market. Combining data
from examination outcomes and prior art at the European Patent Office (EPO), we develop a methodology
to identify pre-emptive patent applications. We find evidence of pre-emption associated to patent
applications cited as compromising patentability while being deemed non inventive. Furthermore, amongst
them, those which are withdrawn by the applicant have the strongest pre-emptive power. The coincidence
of low inventiveness and high pre-emptive impact supports the idea that some of these patents may be
strategically designed by their applicants to block patenting by others.
Keywords: blocking patents, patents, citations, pre-emptive patenting, offensive and defensive patenting
JEL:
K41: Law and Economics / Legal Procedure, the Legal System, and Illegal Behavior / Litigation Process;
C25: Mathematical and Quantitative Methods / Single Equation Models; Single Variables / Single Equation Models; Single Variables: Discrete Regression and Qualitative Choice Models; Discrete Regressors; Proportions; Probabilities;
C51: Mathematical and Quantitative Methods / Econometric Modeling / Model Construction and Estimation;
L20: Industrial Organization / Firm Objectives, Organization, and Behavior / Firm Objectives, Organization, and Behavior: General;
L00: Industrial Organization / General / Industrial Organization: General
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