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

Intellectual Property and Patents

Article Snapshot


F. Scott Kieff


Boston College Law Review, Vol. 45, No. 1, pp. 55-124, 2004


This paper asks whether courts or the patent office should decide patents' validity.

Policy Relevance

A “registration-only” patent system might work better than our present system. Courts would decide when patents were valid.

Main Points

  • In a “registration-only” system, courts do not assume that patents are valid. Validity must be established in litigation.
    • Litigation takes place later, when more is known about the technology.
    • Information about the history of a technology (“prior art”) would help keep valid patents narrow.
    • Because patent examiners today are so overtaxed, our current system is something like a registration system already.

  • This system would work well because one of the main benefits of patents is to signal to everyone where commercial innovation is headed, to avoid duplication and focus research.

  • It might not be effective for the patent office to closely examine every patent. A “registration-only” patent system in which innovations were simply registered might work better. Courts would then decide when patents were valid.

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