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December 16, 2005

Ivory Tower Patent Reform

Three law professors have proposed a bifurcated quality patent examination system: vetted and niggardly.

The three patent gringos lament bad patents everywhere, and the skimpy 18 hours on average examination afforded a patent application; less, they note, than average American weekly TV viewing. Though one of the gringos is an economist, statistical correlation appears not one of their strong suits.

So, the three gringos spring forth with the idea to keep granting crappy patents, but label them as crappy, and treat them shabbily. But, in another class altogether, grant "gold plated" patents, and treat them like they're, uh, patents. The crappy patents wouldn't be presumed valid, would have to sit at the back of the bus, and have separate restroom facilities.

While admitting that their proposed system wouldn't eliminate bad patents, the gringos think it would, as they put it, tell the patent office which patents matter. For the patent gringos, pesos ought to talk more loudly.

Under the gringo patent system, a crappy patent could only be upgraded by ex parte challenge. The gringos offer no way for a crappy patent holder to upgrade their own patents, other than have a ringer put up a sham challenge.

No mention of how or whether a court would handle an asserted crappy patent. Without presumption of validity, presumably the patent holder would have to prove the patent valid. The courts would thus take on the role of patent examiner. Or maybe crappy patents wouldn't be court-worthy, making them truly worthless, thus making anyone interested in actually being granted what's now considered a patent having to "gold plate" their patent. Got infringement? - bring in a challenge ringer.

Sounds like the three gringos are themselves a ringer for jacking patent fees, cutting out the inventive riff-raff. The three patent gringos propose a recipe for shutting out small-time inventors from receiving patent grants, making ever more true the hoary cliché that patents are "the sport of kings".

Maybe, instead, let the patent office keep its fees, instead of being siphoned off by Congress, and continue to work on improving patent examination quality across the board.

Posted by Patent Hawk at December 16, 2005 12:07 AM | The Patent System


I thought this was already the system: if you want a higher presumption of validity, apply for a European version of your patent, so you can get a European search done.

Posted by: JH at December 16, 2005 1:58 AM

"The courts would thus take on the role of patent examiner"...I'm sure many would say that is exactly the case now.

Posted by: Norm at December 16, 2005 9:33 AM

I am glad to see that I was not the only one who thought this was both a derivative (wasn't there a study by some Harvard economists that said essentially the same thing?) and fundamentally useless work.


Posted by: Patent Guy at December 16, 2005 10:31 AM