thing critics have attacked as duplicative of copyright protection and harmful to innovation. There are also concerns from the international community that U.S. firms may be gaining an unfair advantage in patenting in this area, especially over Japan and Europe, who have been slower to adopt a pro-patent stance to business methods.

Critics from all sides argue that Internet business method patents are too easily granted and are “weaker” than other patents because of inadequate reference to prior art in the patent applications. The main target of this criticism has been the U.S. Patent and Trademark Office (USPTO), the institution in charge of granting patents and ensuring the quality of the patents that eventually issue. There is special concern about whether the USPTO has adequately reviewed Internet business method patent applications and whether the prior art references in those patent applications are sufficient to warrant patent issuance. In the areas of software patents generally, and business method patents particularly, there has been much concern that the corps of patent examiners has been insufficiently populated with those qualified to seek out nontraditional sources of prior art and to knowledgeably examine these patents. Some observers argue that examiner inexperience has been and continues to be a major problem in these areas.6 Only recently has the USPTO begun to hire examiners in software and related fields7 and, even more recently, to institute programs for training and providing more access to literature on the business disciplines.8

Because much of the criticism of Internet business method patents focuses on their perceived differences from other patents granted by the USPTO, it is important to know whether these patents do in fact differ from the more general patents that issue from the USPTO and, if they do differ, in what ways. Our study compares characteristics of Internet-related patents with a random set of more general patents issued by the USPTO during a contemporaneous time period to see whether there are observable differences that would justify the criticisms. The main motivation of this study is to inform the debate over Internet business method patents with facts, rather than speculation, about the differences between these patents and more general patents granted by the USPTO. We conclude that criticisms of Internet-related patents that focus on prior art in particular should be taken with some caution, as we find the statistical differences between these patents and more general patents to be small and, if anything, to suggest that Internet-related patents are well supported by prior art references.

We note that this study looks primarily at quantitative data from patents rather than the quality of the information provided in the patents. Among other data, we collected information on the total number of patent and nonpatent prior art references, the amount of time a patent spent in the USPTO before issuance, and the

6  

See, e.g., Ross (2000).

7  

See, e.g., Cohen and Lemley (2001).

8  

See United States Patent & Trademark Office (2000).



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