Mark Lemley (Stanford), Doug Lichtman (U. Chicago and ISP Fellow) and Bhaven Sampat (Columbia) have a short article in the Winter 2005-6 edition of Regulation magazine entitled, "What to Do about Bad Patents." They argue for addressing the patent quality problem post- rather than pre-grant. However, because Community Patent Review reconceptualizes the nature of administration and provides concrete mechanisms to implement collaborative expertise, it could just as well be applied to solve the problem that they describe. A conclusion that Mark Lemley also proposed at the "Peer to Patent" Communtiy Patent Review Workshop at Stanford on May 9, 2006.
In the piece, they detail the parade of familiar horribles about bad patents, patent pendency and the lack of information in the examination process. Their concern, as in earlier work (e.g. Rational Ignorance at the Patent Office), is that throwing more money at the problem up front is wasteful because most patents are never practiced, let alone litigated. "Most patents do not matter. They claim technologies that ultimately fail in the marketplace. they protect firms from competitors who for other reasons fail to materialize. They were acquired so as to signal investors that the relevant firm has intellectual assets. Or they were lottery tickets filed on the speculation that a given industry or invention would take off."
The central concern, as they see it, is not the large number of bad patents but the "small but worrisome number of economically significant bad patents." In other words, the patent troll is not simply the person who holds but doesn't practice their patent (like me) but the person who maliciously exploits that patent through litigating against productive companies. We need to distinguish between bad patents with bad effect and unimportant bad patents.
To this end, they propose three solutions: 1) weakening the presumption of validity (I agree this is essential), 2) allowing legitimate inventors to earn a presumption of validity and "gold-plating" their patents by paying for more thorough searches, and 2) instituting post-grant opposition, "a process by which parties other than the applicant would have the opportunity to request and fund a thorough examination of a recently issued patent."
Community Patent Review could go a long way toward addressing these concerns and implementing their solutions. Community Review is precisely intended to serve as a more thorough search that would enhance the presumption of the patent's validity. It is also a way for competitors (and others) to provide information and input into the process. But Community Patent Review recognizes that a much larger community than that of industry competitors may have an interest in the granting of a bad patent. Academic and hobbyist innovators may also have good information to inform the search but lack the resources to pay to comment. Connecting the community earlier in the process has potentially valuable added externalities that will improve patent quality. While broader in scope, the same systems designed for a post-publication, pre-grant peer review could also be used for the post-grant opposition. It will be easier to get inventors to consent to pre-grant peer review but if the volunteers come forward, there is not reason not to experiment with a post-grant peer review pilot.
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