Patenting Inventions or Inventing Patents? Strategic Use of Continuations at the USPTO

Cesare Righi and Timothy Simcoe

Continuations allow inventors to patent technology developed after the original filing date of a patent, leading to concerns about hold-up. We exploit the link between patents and standards created by the disclosure of standard essential patents (SEPs) to analyze the relationship between standard publication — a key observable milestone in technology development — and continuations. More than half of the SEPs in our data are filed after standard publication. Consistent with opportunistic behavior, there is a large increase in continuations immediately after standard publication. Keywords in the claims of SEPs linked to the same standard also become more similar after standard publication.

SSRN working paper.