While the main theoretical benefit of patent protection is increased innovation, some assert a swamped U.S. Patent and Trademark Office has granted an inefficiently large number of patents with negligible innovation value. This Article tests this argument’s plausibility and determines the characteristics of patents without innovation by analyzing 980 litigated patents subject to anticipation or obviousness decisions between 2000 and 2010. Using a selection corrected probit model, this Article obtains unconditional estimates of the likelihood patents with given characteristics lack innovation value. This Article estimates a surprising 28 percent of all patents would be found at least partially invalid if litigated. Software, business method, and licensing firm-owned patents possess significantly higher innovation-based invalidity rates than other types of patents.
