53 Pages Posted: 8 Mar 2015 Last revised: 3 Feb 2016
Date Written: January 8, 2016
Everyone knows that it is far too easy to get a (bad) patent. Fingers often point to the U.S. Patent and Trademark Office (PTO), which is often criticized for making awful patenting decisions. Legal scholars have offered several reasons for the quality problem, including low substantive standards for patentability and problems with the PTO’s inner workings, decision-making, and policy choices.
This Article offers a very different explanation for the patent quality problem. Drawing attention to what happens inside the PTO is clearly the correct locus; however, any serious headway toward improving patent quality must focus more directly on patent examination. My basic claim is that the PTO issues low-quality patents primarily because of a confluence of three asymmetries — proof, information, and legal — that exist in the current patent examination paradigm. I explain how these asymmetries tip the scales of patentability so far in the applicant’s favor that anyone who seeks a patent on anything usually gets one. I propose a new patent examination regime which would eliminate the three asymmetries, derail frivolous filings, and make a patent grant far from guaranteed. Rebalancing the scales of patentability would improve patent quality and promote broader goals of patent policy.
Keywords: patents, patentability, presumptions, proof, disclosure, knowledge, innovation, PTO, USPTO
JEL Classification: O31, O32, O33, O34, O38, O40, O48, K39
Suggested Citation: Suggested Citation