Suppose that patents were granted automatically without examination — beyond some minimal review — but consequently, with less exclusionary power should the patent be at issue in legal proceedings.
How would this work? An inventor submits a patent application and, if they choose, they can receive a ‘weak’ patent immediately. Should they notice someone else commercialising their invention, they could then initiate court proceedings at which time they would need to have the patent examined which could, of course, require all of the changes and uncertainty that comes with that process. Of course, it may be that this is an obvious outcome and could actually be avoided in return for some settlement with the potential infringer of their patent.
I will grant that, taking the amount of patent filings as given, this sounds like an improvement. But I think it would greatly increase the number of patent filings. From an offensive perspective, you want to file patents on anything you can dream of, because you know you are going to get approval. From a defensive perspective, you want to file a patent much sooner than you would have otherwise, for fear of someone else getting a weak patent.
I hope this idea is thought through more carefully before it is implemented.
There would still need to be an application fee (potentially based on some claimed value of the patent, say by setting a optional max licensing fee). That would limit filings.
The filing fees look to me like they are (conservatively) at most 10% of the total filing costs (including patent search and attorney fees). They’re nontrivial (on the order of $1000) but I doubt they would deter a large software firm from filing an order of magnitude more patents. It all boils down the expected value of a weak patent in potential litigation, right? Microsoft, for example, received ~2500 patents in 2013 (https://en.wikipedia.org/wiki/List_of_top_United_States_patent_recipients). Let’s estimate the total cost of that as approximately $10k * 2.5k = $25M, and assume that they are being rational, so the expected value in forestalled legal costs of filing these patents is about that amount. Suppose that the odds of a single patent being challenged at any point during its term are 5%. If MSFT filed weak patents and strong ones only when challenged, they would expect to spend $1k + 0.05 * $9K or about $1500 per patent. If they file enough to match their expected legal exposure of $25M, then they would increase their portfolio to about 17k patents per year. Scale this down as you wish depending on the odds that a possibly frivolous weak patent will be rejected or rendered legally useless during the strengthening process.
I’m not saying these calculations are necessarily meaningful, but they support Arnold’s basic point to some degree.
Lawyers fees may hinder both good and bad.
This should be a separate issue from what should and shouldn’t be patentable. Perhaps streamlining the legal process and increasing the iterations could help add some Bayesianism and common law type pecedent to that issue as well.
A form or weak patents is already available. These days one files a “provisional patent application” which is valid for one year and is not examined. However, if the applicant subsequently files a real application, the date of the provisional application is used as the priority date. In the “first to file” system (US from 2013 on) the filing date is crucial.