At the time patent applications are reviewed, the Patent and TrademarkOffice has no way of identifying the small number of applications that arelikely to end up having real economic significance. Thus patentapplications are for the most part treated alike, with every applicationgetting the same - and by necessity sparse - review. In this short magazinepiece, we urge in response three basic reforms. First, we would weaken thepresumption of validity that today attaches to all issued patents. Themodern strong presumption simply does not reflect the reality of patentreview; presumptions, in short, should be earned. Second, becauselegitimate inventors need as much certainty as the law can provide, wewould give applicants the option of earning a presumption of validity bypaying for a thorough examination of their inventions. Put differently,applicants should be allowed to "gold-plate" their patents by paying forthe kind of searching review that would merit a strong presumption ofvalidity. Third and finally, because competitors also have usefulinformation about which patents worry them and which do not, we supportinstituting a post-grant opposition system, a process by which partiesother than the applicant would have the opportunity to request and fund athorough examination of a recently issued patent. As we explain in thepiece, these reforms would together allow the Patent Office to focus itsresources on patents that might actually matter, and it would also bothreduce the incentive to file patents of questionable validity and reducethe harm caused by such patents in any event.
Low-Quality Patents in the Eye of the Beholder: Evidence from Multiple Examiners