Although all should be treated equally under the law, patent law has long been known to favor some less than others. Patentable technology is highly heterogeneous, covering everything from minute improvements in electronics to pioneering new artificial organs, but patent protection itself is purely a one-size-fits-all system. Patents thus overreward some while underrewarding others. On the one hand, patents overreward low-investment, low-value inventions by granting them the same twenty-year term of protection as those that required much higher investments and yield much higher social value. The resulting glut of low-quality patents has contributed greatly to the “patent crisis” of opportunistic “patent trolls,” heightened transaction costs, and costly litigation that have ultimately stalled innovation. On the other hand, patents also underreward in two significant ways. First, patents often fail to give some high-investment, high-value inventions enough protection. Second, many inventors are shut out from patent protection altogether if they lack the resources necessary to navigate the patent system’s costly, complex, and frequently biased examination process. This latter phenomenon disproportionately affects female and minority inventors, among others, thereby creating significant distributive effects.
This Article argues that both of these effects—the overprotection of low-value inventions and the underprotection of inventions by women and minorities—could be alleviated by altering one particular but seldom-appreciated aspect of the patent system’s one-size-fits-all approach: its registration-only design. Copyright and trademark law allow for both registered and unregistered rights, but the patent system grants rights only to those who register their inventions and undergo subsequent examination. If the patent system were to follow the two-tiered approach of copyright and trademark law, however, and implement a regime of automatic but very limited unregistered rights in addition to registered rights, it could help address both problems. First, providing a much lower-cost alternative for obtaining protection, such a two-tiered regime could, with varying degrees of aggressiveness, channel low-investment, low-value inventions away from the system-clogging overprotections of the full, twenty-year, broad rights currently granted to registered patents. Second, as the authors of this Article have previously argued, by providing automatic rights without having to go through the resource-intensive registration and examination process, unregistered patent protection could help women and other disadvantaged inventors gain greater access to patent protections. Maintaining a two-tiered regime of both registered and unregistered patent rights thus offers a promising way to mitigate the inefficiencies of the current system by attenuating certain aspects of the current patent crisis while promoting a more egalitarian playing field for inventors.
Miriam Marcowitz-Bitton & Emily M. Morris,
95 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol95/iss4/5