A Better Carrot Incentivizing Patent Reexamination

by James W. Beard –

Patent reexamination provides a potentially powerful alternative to full invalidity litigation, but it has been underutilized because of deficiencies in the patent reexamination system. The system’s appeal as an alternative to invalidity litigation is greatly diminished by constraints on forms of evidence and grounds for invalidity, the limited potential for challengers to participate in the process, and the significant risk a challenger takes in pursuing patent reexamination. While reforms have been proposed, most have focused on enlarging the procedure within the context originally established by Congress. Although such reforms may be important, they do not address the central obstacle to third party challenges. This note discusses an incentive structure that may encourage third parties to overcome the perverse motivation to practice willful blindness, and encourage active reading of issued patents.

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