Document Type
Article
Publication Date
3-18-2025
Abstract
In this Article, we offer a new design for our patent system with a view to optimize its functioning. As multiple patent scholars have recognized, the root cause of the ills of our patent system is the high rate of low-quality patents. Extant patent law employs a binary screening process, under which inventions either qualify for protection or fail. Thereafter, all qualifying inventions are entitled to the same level of protection irrespective of the degree of their novelty, utility and nonobviousness. As we establish throughout this Article, patent law’s failure to distinguish among inventions based on their quality greatly undermines the patent system’s principal objective of optimally incentivizing and adequately rewarding innovative progress. Society, at least in principle, ends up paying the same price for all qualifying inventions, regardless of their level of innovation and improvement upon the prior art. To address this problem, we advocate a fundamental, yet simple, reconceptualization of patent law. Instead of utilizing a threshold-based regime under which the USPTO merely decides whether an invention is patentable, we introduce a mechanism of Patent Grades. According to our proposal, once the USPTO determines the eligibility of a given invention to patent protection, it would proceed to assign it a grade—on a 1-to-5 scale. A grade of 1 would be given to the lowest quality patents and a grade of 5 to the highest. The grade of a patent would determine the invention’s scope of protection. In contrast to the current system that entitles all eligible inventions to 20 years of exclusivity, the protection term under our proposal would vary based on the patent grade. Furthermore, the remedies available to patentholders would be contingent on the grade. As we will show, these changes alone would dramatically reduce the slew of problems associated with bad patents. As importantly, Patent Grades would be known to potential licensees, industry participants and courts. The information represented by the grades would eliminate or significantly ameliorate the abuses that arise under the present patent system. The adoption of Patent Grades would curtail the market power of patentees vis-à-vis users, attenuate the problem of trolling, reduce litigation and enhance cumulative innovation. It would also improve the examination process by equipping the USPTO with a more precise metric for evaluating the work product of patent examiners. Thus, implementation of our proposal would lead to a fairer and more efficient patent system.
Publication Title
Washington University Law Review
Repository Citation
Parchomovsky, Gideon and Baharad, Roy, "Grading Patents" (2025). Articles. 535.
https://scholarship.law.upenn.edu/faculty_articles/535
Publication Citation
102 Wash. U. L. Rev. 859 (2025)