The Conundrum Confronting Congress: The Patent System Must Be Left Untouched While Being Radically Reformed, 5 J. Marshall Rev. Intell. Prop. L. 268 (2006)

Patent systems reforms have been recommended by a variety of interests, including the Federal Trade Commission and the National Academies of Science and the private sector. Although calls for radical reforms have undeniable merit, the effectiveness of the existing patent system as an incentive to investment in innovation must be left untouched in the reform process. Unwise reforms include awarding patent injunctions only sparingly and limiting patent damages to nominal amounts for inventions relating to patentable combinations made of existing components. There are, however, “three pillars” that should guide reform: (1) introduce full transparency and objectiveness into the tests for determining patent validity; (2) create comprehensive post-issuance patent revocation procedures; and (3) establish incentives for inventors to obtain fully valid patents by eliminating the “inequitable conduct” defense for such valid patents. Further, the current nineteenth-century patent examining paradigm should be changed to reflect the twenty-first century realities. The new paradigm should demand increased patent applicant responsibility and increased patent examiner accountability