Collusion and Collective Action in the Patent System: A Proposal for Patent Bounties

Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary\u27s lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency. Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute meaningfully to the solution of our patent quality problem. Exploring the political economy of patent challenges, Professor Thomas reasons that oppositions do little to solve collective action problems, the possibility of collusion between the prior art holder and patentee, and the existence of the first inventor defense. Professor Thomas instead proposes that the Patent Office recruit members of the public to act as private patent examiners. By awarding prior art informants with a bounty assessed against applicants, the Patent Office can restore order to the patent system and reduce its social costs