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The Patent Pollution Problem: Its Causes, Effects and Solutions

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America's patent system dates back to the founding of our nation when it was expressly included in the Constitution. To be sure, a patent system can provide many great benefits to society. However, patents also pose a great threat to society because the issuance of a patent makes it illegal for any American to do whatever is claimed by the patent. Thus, it is critically important to the success of our patent system that it maintain high patent quality and ensures only deserving patents are issued.

As Thomas Jefferson wrote in 1813,

"Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not."

The Supreme Court has continually acknowledged the importance of maintaining high patent quality, saying just a few years ago that, "the results of ordinary innovation are not the subject of exclusive rights under the patent laws [because w]ere it otherwise patents might stifle, rather than promote, the progress of useful arts."

Unfortunately, the American patent system today is suffering from extremely low patent quality. Every Tuesday the Patent Office issues 4,500 patents after spending, on average, less than a couple of days in reviewing the merits of each patent application. When asked to reconsider the merits of patents it previously issued, the Patent Office concedes that the vast majority of them have questionable validity. When patents end up in court as a result of patent owners suing alleged infringers, a large percentage of the time those asserted patents are found to have been improperly granted. The result is a polluted patent system littered with trash patents that impede technological development.

In the video below, I explain why patent quality is so low in America today, describe in detail the ways in which low patent quality is harming Americans, and propose mechanisms for solving the low patent quality problem.

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