The Case for Registering Patents and the Law and Economics of Present Patent-Obtaining Rules

Abstract

The legal rules for determining whether an inventor is entitled to a patent are presently enforced in the first instance by the Patent Office through ex parte examination of patent applications. Critics of various aspects of the patent system suggest that these rules should be ratcheted up in some way, subjecting patents to more scrutiny during Patent Office examination. Departing from existing literature, this paper offers a hypothetical model system under which patent applications are merely registered, not examined, to show how hard look approaches like examination increase social costs over soft look approaches like registration. The paper presents a new normative view of present positive law rules for obtaining patents that sees these rules as primarily operating to minimize social cost, and accounts for otherwise puzzling aspects of the patent system. This "registration" theory for the patent-obtaining rules is a companion to the "commercialization" theory for the patent-enforcing rules presented in prior work by the same author and these together are shown to offer a more coherent view of the patent system than other theories in the literature, such as the so-called "prospect" and "rent dissipation" theories. Far from defending the status quo of the present system, the registration theory identifies those rules that are essential and those that should be reformed. The registration theory reveals inherent registration aspects of our present system; and elucidates reasons for eschewing reforms presented elsewhere in the literature and adopting those presented here.

Keywords: patent, patent registration