Jackson's argument is that, by keeping its collected fees, the patent office has an incentive to grant patents; more to the dirty deed itself, the incentive to grant bad patents. So Jackson wants to set the fee structure so as to create an incentive for the patent office not to grant patents, including government-mandated "bonus points" for not granting a patent.

The patent office has recently taken a lot of political heat for patent quality from years past, and has been responsive to it with numerous measures, including hiring more examiners and tightening examination procedures. That alone makes Jackson's position fantasy-drenched.

There is evidence to the contrary that the patent office uses its fees as action incentives. If it did, based on current fee structure, the patent office would make out much better by denying patents, forcing costly appeals, requests for continued examination (RCE), and continuations. Instead, the patent office is trying to streamline, and cut the cost, of the appeal process, and limit continuations.

Moreover, consider that patent office fees are correlated somewhat to operational costs, rather than as an incentive to perform a function. The patent issue fee, for example, intending to cover the costs of publication and record-keeping associated with an issued patent, is only slightly more than the application & prior art search fee.

The high maintenance fees that the PTO charges do not seem to be strictly cost based, but instead intended, at least to a degree, to chide patent holders to reconsider whether a patent is worth paying thousands of dollars to keep rather than let lapse.

To the point of regulatory capture, that happens when an organized vested interest influences governmental agency policy. In this case, that might be a non-existent cabal of patent attorneys, or patenting corporations, or lobbyists like the Intellectual Property Owners Organization. If you've been paying attention, you may have noticed intrinsic conflicting interests in these groups, particularly evident during last year's feedback regarding the Patent Reform Act of 2005. Most interesting is the tug-of-war in desire for patent strength between industries: bio-tech (for) and computer-tech (against). It's not like industrialists all wanting the EPA to let them pollute. What's more, all the big-money vested interests have an interest in patent quality, and against junk patents.

The problem with Jackson Lenford and similar ilk is a utopian idealism that is ignorant of history and economics. Jackson's fantastic premise is that "The freedom to create is an essential human right, with us since time immemorial. For most of world history, an individual could invent at will, using any idea that they encounterd [sic] or that occurred independently to them. Today, this right has been deeply eroded."

The book "The Birth of Plenty," by William J. Bernstein, subtitled "how the prosperity of the modern world was created," points out that the premodern absence of property rights was a primary block to advancing peoples' living standards.

English monarchs from 1449 into the 17th century gave patents a bad name by making them government-granted monopolies in trade, a practice that ended in rebellion against the crown's corruption, and civil war.

Today's patents are an economic expression of creating a property right from invention, a property right recognized in practically every country on the planet. Founded by statute in 1790, one of the earliest federal government agencies in the U.S. was the patent office. The U.S. government may do much harm to its citizens and our economic well-being, but granting patents isn't one of them.

Here are a few web pages on the history of U.S. patents: About.com; Ladas & Parry; M-Cam.

And here's a patent examiner on this topic.