The IEEE on how to fix the patent system

First, create incentives and opportunities for parties to challenge the novelty and nonobviousness of an invention before the PTO grants a patent.

Second, provide multiple levels of application review, with examiners devoting successively more time and effort as an application proceeds to higher levels. The goal would be to avoid wasting money to meticulously examine unimportant patents, while taking sufficient care to avoid mistakes where the stakes are high.

Finally, in cases involving claims of patent invalidity based on the existence of prior art—that is, previously issued patents or public disclosures covering the invention at issue—replace juries with judges who could call on experts, called special masters, for guidance. The change would give parties threatened by invalid patents a better opportunity to make their cases to the court.

The first two proposals aim to make the PTO more effective at a reasonable cost. The third addresses the reality that since even the best of all possible PTOs will make mistakes, we need a court system capable of correcting them.

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