The Case for Registering Patents and the Law and Economics of Present Patent-Obtaining Rules

Abstract

(Note: this is a substantially revised version of Harvard Olin Working Paper No. 415 of May 2003, SSRN Abstract ID No. 392202 (http://ssrn.com/abstract=392202) and includes more detailed discussion of issues including the DOE, willfulness and the Knorr decision, and the FTC Report on patents and antitrust.)

Critics of the patent system suggest the rules for determining patentability should be stricter, subjecting patents to more scrutiny during Patent Office examination. This Article offers a counterintuitive model system under which patent applications are registered, not examined, to elucidate a new normative view that sees present positive law rules for obtaining patents as primarily operating to minimize social cost, and that accounts for otherwise puzzling aspects of the patent system. This registration theory for patent-obtaining rules is a companion to the commercialization theory for patent-enforcing rules by the same author. This Article shows how these theories together offer a more coherent view of the patent system than the reward, prospect, and rent dissipation theories. This Article further identifies those patentability rules that are essential and those that should be reformed, while revealing inherent registration aspects of our present system and reasons for eschewing reforms presented elsewhere.

Keywords: Intellectual Property, Antitrust, Patent, Trademark, Property, Innovation, Invention, Law and Economics, Litigation, Registration, Examination, SEC

JEL Classification: K11,K21,K22,K23,K39,K41,L40,O31,O34,P14