Nearly half of litigated patents are invalidated. Because of this, and in order to 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. The paper also suggests reforms to the patent system that are designed to meet the varied needs of different industries, primarily using pharmaceutical and computer industries as examples. The four reforms proposed are: allowing varied amounts of scrutiny in patent examination, pre-litigation claim scope hearings, variation in patent term length, and reforms to 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 classifying 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.
- patent reform,
- patent policy
Available at: http://works.bepress.com/michael_meehan/1/