Author(s)
Source
Boston College Law Review, Vol. 45, No. 1, pp. 55-124, 2004
Summary
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.