Abstract

The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's decisions regarding patent validity. That is a mistake. Deference to previous decisions is appropriate in instances where those previous decisions have a high likelihood of being accurate. But to grant significant deference to the initial process of patent review is to defer to an unavoidably and significantly inaccurate signal. Put bluntly, early patent review is not reliable and is unlikely to become so. In this chapter, we explain why and propose the creation of a two-tier system of patent validity, with a strong presumption being given to patents after they have been subject to any of a number of intensive review procedures, but only a weak presumption being awarded as a matter of course on patent issuance.

Introduction: The “Bad Patent” Problem

The United States Patent and Trademark Office (PTO) is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a herculean task. One problem is resources. About 450,000 patent applicantions are processed annually. As of Fall 2009, there are 1.2 million unexamined applications in the PTO's backlog. To accurately evaluate the merits of all of those purported inventions would cost billions.