Patents are supposed to benefit the public. The Constitution implicitly expresses this intent [1] and the Supreme Court has so interpreted it. [2] Yet the current patent system falls miserably short of realizing this purpose in several critical respects. One glaring example of the system’s failure is the absence of a timely, inexpensive mechanism for invalidating the high number of bad patents being issued. As a result of this void, the public is suffering and the need for reform is dire.


The first step in any significant patent reform proposal should be consideration of the constitutional basis for granting patents. Article I, Section 8, Clause 8 states that Congress shall have the power “to promote the progress of useful arts … by securing for limited times to inventors the exclusive right to their discoveries.” [3] Implicit in this clause is an emphasis on a system having limited scope designed to benefit the public — not on an overly expansive system preoccupied with the rights of inventors, corporations or other entities. Thomas Jefferson, the chief architect of the original patent system, [4] espoused this view by resolutely stating that patents are for “the benefit of the public” and unequivocally rejecting the theory that inventors have natural rights in their inventions. [5] And the Supreme Court recognized that Congress’ power to adopt a patent system is not a blanket one, but is instead limited by the Constitutional intent of promoting society’s welfare. It stated, “Congress … may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly [system] without regard to the … advancement or social benefit gained thereby.” [6] Thus, Congress may adopt a patent system to promote innovation useful to the public, but the system must not exceed its public-centered constitutional aim.


So how is the current patent system exceeding this constitutional restraint? It is allowing too many bad patents to prevail, without offering an inexpensive and timely mechanism for invalidation. Therefore, by virtue of omission, it is “overreach the restraints imposed by …  constitutional purpose,” ignoring the “social benefit” gained by granting patents, and overlooking the fundamental fact that patents are for the “benefit of the public.” [7]


The problems associated with the existence of bad patents and the need for an effective, inexpensive vehicle for challenging them are nothing new. Over the past twenty-five years, several laws were proposed and passed intending to remedy these ills. [8] Most recently, Congress introduced a bill aimed at curbing the adverse effects of bad patents, [9] and prominent policy organizations [10] and commentators [11] advocated for, inter alia, the adoption of a new post-grant opposition as an antidote to the poison of bad patents. While these recent developments are certainly promising, without due attention given to the “advancement or social benefit gained thereby,” such measures may fall upon deaf ears or fail to reform the patent system in a manner that furthers the constitutional mandate of promoting the public welfare. [12]


Part II of this paper briefly explains the meaning of bad patents and then summarizes past legislative attempts to design an administrative review procedure for correcting them. Part III discusses the provisions of an administrative post-grant opposition procedure contained in a patent reform bill recently introduced in Congress. Part IV provides a public welfare rationale for adopting a new administrative post-grant opposition highlighting the adverse public effects of granting bad patents. Part V argues for the addition of specific provisions to the current bill that better serve the constitutional purpose of advancing the public’s welfare….


Eric Williams *