In the current issue of Regulation Magazine, Mark Lemley, Bhaven Sampat and I write about patent reform. Our launching point is the simple fact that, at the time patent applications are reviewed, the Patent Office has no way to identify the small number of applications that are likely to end up having real economic consequence. Thus patent applications are for the most part treated alike, with every application getting the same -- and by necessity sparse -- review. We then urge in response three basic reforms.
First, we would weaken the presumption of validity that today attaches to all issued patents. The modern strong presumption does not reflect the reality of patent review; the presumption, in short, is not earned.
Second, because legitimate inventors need as much certainty as the law can provide, we would give applicants the option of earning a presumption of validity by paying for a thorough examining of their inventions. Put differently, applicants would be allowed to "gold-plate" their patents by paying for the kind of searching review that would merit a strong presumption of validity.
Third and finally, because competitors also have useful information about which patents worry them and which do not, we would institute a post-grant opposition system, a process by which parties other than the applicant would have the opportunity to request and fund a thorough examination of a recently issued patent.
As we argue in the piece (available for download here) these reforms would together allow the Patent Office to focus its resources on patents that might actually matter, and they would also both reduce the incentive to file patents of questionable validity and reduce the harm caused by such patents in any event.