Increasing Certainty and Harnessing Private Information in the U.S. Patent System: A Proposal for Reform
2010 STAN. TECH. L. REV. 1
73 Pages Posted: 4 Nov 2016
Date Written: 2010
Nearly half of litigated patents are invalidated. To address this issue and reduce the number of bad patents, ‖ commentators and industry members have called for reforms to increase certainty in the patent system. Many have also proposed reforms that meet the varied needs of different industries.
This paper responds to these prior proposals and proposes reforms that harness information known to patentees. These reforms are designed to meet industry-specific needs, as exemplified by the pharmaceutical and computer industries. Although many different reforms could be devised to improve the patent system by utilizing private information, four reforms are discussed herein: (1) allowing varied amounts of scrutiny in patent examination; (2) introducing pre-litigation claim scope hearings; (3) allowing variation in patent term lengths; and (4) reforming patent oppositions. Each of the four proposed reforms relies on the premise that the needs of various patentees and third parties can be met by providing options or ― tiers ‖ in the patent system and allowing the patentee and third parties to choose the options or opt into the different tiers, thereby harnessing currently unused or underused private information. These reforms allow industry-specific effects while avoiding the difficulties associated with classifications based on industry. As these reforms, and others similar to them, could significantly increase the cost of patent prosecution or patent maintenance, care is taken to consider the effect that the reforms could have on the poorest of patentees.
Keywords: patent reform, intellectual property
JEL Classification: 03, 034, 031, 032, 038
Suggested Citation: Suggested Citation