The original U.S. patent act of 1790 was a formula for discontent by all parties: it satisfied neither patent applicants, nor those appointed to grant patents (the Secretary of State, assisted by the Secretary for War and Attorney General). No appeal was possible.

The Patent Act of 1793 was a response, not so much to patent applicant complaints, but for the benefit of the high government officials whose time was being drained away by patent examination duties.

While a patent office was set up, patent examination went from rigid strictness to no examination at all. The State Department could not refuse to issue a patent. It was left to the courts to settle the inevitable disputes. As a consequence, patent fraud became endemic, prompting the Patent Reform Act of 1836.

As French points out, the patent office today, owing to finite resources, "does not purport to establish an exhaustive and conclusive examination." The ire of infringing companies and prominence of patent suits against well-regarded consumer products has provoked cries for reform.

But examination never was exhaustive and the courts have continued to evaluate patents for their validity to this present day. This was not an illogical policy in 1793, and it is not an illogical policy in the first decade of the 21st century.

French examines the long-standing dilemma of patent vetting via litigation, and suggests alternative paths.

David French's article is highly recommended reading. Comments and discussion are solicited.