Rethinking Patent Law's Presumption of Validity

The United States Patent and Trademark Office is tasked with the job ofreading patent applications and determining which ones qualify for patentprotection. It is a Herculean task, and the Patent Office pursues itsubject to enormous informational and budgetary constraints. Nonetheless,under current law, courts are bound to defer to the Patent Office'sdecisions regarding patent validity. In this Article, we argue for reform.Deference to previous decision-makers is appropriate in instances wherethose previous decisions have a high likelihood of accuracy, and the patentsystem should endeavor to create processes that fit this mold. But grantingsignificant deference to the initial process of patent review isindefensible and counter-productive. Patents should be vulnerable tochallenge until and unless they are significantly evaluated in aninformation-rich environment. At that point, they will have earned andtherefore should be accorded a presumption of validity. Such an approachwould better serve the patent's systems long-run incentive goals, and itwould give patent applicants better incentives to file for genuineinventions but leave their more obvious and incremental accomplishmentsoutside the patent system's purview. Here, we therefore suggest thecreation of a two-tier system of patent validity, with patents that aresubject to intensive scrutiny accorded a strong presumption of validity,while untested patents are left to be evaluated more fully in court.