Richard Levin, President of Yale University, proposes a broad basis for post-grant opposition. "The grounds for a challenge could be any of the statutory standards—novelty, utility, nonobviousness, disclosure, or enablement—or the case law proscription on patenting abstract ideas and natural phenomena."

Ex-parte reexamination addresses the same issue, but is disliked by corporate infringers, as the process resides largely outside their control. The question remains, however, of any evidence of inadequacy of reexamination as an effective post-grant opposition procedure. That's not something so-called patent reformers mention.

The sole supportive basis for post-grant opposition is a presumption that the patent office does not adequately do its job vetting patent applications, an issue addressed in part 1 of this series.

There can be no denying that allowing post-grant opposition intrinsically weakens the presumption of validity for a granted patent, and thereby lessens the commercial value of any patent which has not withstood this "procedure".

The question of fairness regarding a new post-grant opposition opportunity is the cost imposed on the patent owner. Under this new regime, a patent applicant, who has already paid for an examination and received a patent grant, must now suffer The Spanish Inquisition by any goon with the moola to put up a stiff fight. Essentially, it provides an infringer the opportunity to become the plaintiff. There already exists a opportunity by an infringer for this - filing for declaratory judgment. But, under current law, an infringer can only file for declaratory judgment if a patent holder slips and accuses infringement without prior filing with the court.

So, post-grant opposition tilts the playing field towards infringers, at the expense of patent holders. It also weakens the market for patents as commodities. In a larger sense, allowing the proposed post-grant opposition procedure emasculates the patent examination process, and weakens the basic tenets of the patent system.

Speaking of emasculating patent enforcement, the same crusaders howling for post-grant opposition tend to be against injunctive relief for patent holders that don't employ their patented technology (a subject for an upcoming posting).