Rethinking Patent Law's Presumption of Validity

30 Pages Posted: 2 Aug 2007 Last revised: 6 Feb 2011

See all articles by Douglas Lichtman

Douglas Lichtman

University of California, Los Angeles (UCLA) - School of Law

Mark A. Lemley

Stanford Law School


The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a Herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's decisions regarding patent validity. In this Article, we argue for reform. Deference to previous decision-makers is appropriate in instances where those previous decisions have a high likelihood of accuracy, and the patent system should endeavor to create processes that fit this mold. But granting significant deference to the initial process of patent review is indefensible and counter-productive. Patents should be vulnerable to challenge until and unless they are significantly evaluated in an information-rich environment. At that point, they will have earned and therefore should be accorded a presumption of validity. Such an approach would better serve the patent's systems long-run incentive goals, and it would give patent applicants better incentives to file for genuine inventions but leave their more obvious and incremental accomplishments outside the patent system's purview. Here, we therefore suggest the creation of a two-tier system of patent validity, with patents that are subject to intensive scrutiny accorded a strong presumption of validity, while untested patents are left to be evaluated more fully in court.

Keywords: patent law, patents, patent review, presumption, presumption of validity

JEL Classification: K3

Suggested Citation

Lichtman, Douglas Gary and Lemley, Mark A., Rethinking Patent Law's Presumption of Validity. Stanford Law Review, Vol. 60, p. 45, 2007, UCLA School of Law, Law-Econ Research Paper No. 07-12, Stanford Public Law Working Paper No. 963996, Stanford Law and Economics Olin Working Paper No. 353, Available at SSRN:

Douglas Gary Lichtman (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-267-4617 (Phone)

Mark A. Lemley

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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