50 Pages Posted: 6 Nov 2015 Last revised: 1 Feb 2017
Date Written: November 4, 2015
Much of the academic commentary on the patent system’s dysfunctions has focused on patent quality. The considerable attention paid to quality issues, while necessary, overlooks a much larger problem — one of patent quantity. The generation, examination, management, and monetization of an ever-increasing number of patents and applications exert distortionary effects on the patent system, such as the U.S. Patent and Trademark Office’s prioritization of application processing over patent quality; the growth of patent thickets; the “anticommons” that impede innovation; and the rise of patent assertion entities. In a departure from the literature, this Article argues that the patent quantity problem must be solved first in order to solve the quality problem. Solving the quantity problem may also mitigate the other distortions in the patent system. Based on a situational analysis of the behavior of the patentees’ agents — who have been largely overlooked in the patent reform literature — this Article proposes that a mechanism for mitigating the patent quantity problem (and its effects) may lie in a judicially-developed de facto working requirement for patent assertions.
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