One solution may be to adopt an add-on to the patent system that has long been a part of traditional European models and is now common in other countries as well. This would allow for the issuance of what are commonly known as petty patents or utility model patents. Typically, such patents are not examined unless sued upon, published quickly, narrowly construed and of more limited duration than other patents.
This may free up the examination system to reduce pendency times and improve the quality of the U.S. patent examination process. It also responds to two other concerns reflected in the National Academies' report. The first of these concerns is for better and more timely dissemination of both the technical information in patents and the patent-based barriers to product development in industries characterized by complex technologies and short product life cycles. The second concern to which the implementation of a petty patent system would respond is that of better tailoring the patent system to the needs and characteristics of different industries.
Again, innovations in industries characterized by short product life cycles may find those innovations adequately protected by narrow and short-term patents while not being burdened with patents still unexpired but well beyond the life of the innovative products they were designed to protect.
Relatively little has been published to suggest serious consideration of such a system in the United States.
Given the increasingly vocal critics of the patent system, this and other system improvements should continue to be addressed. Unfortunately, Congress may have little appetite for wading into this problem after its seven-year march to the Leahy-Smith America Invents Act that it finally passed in 2011. Also unfortunately, those interested in improving or justifying the system are so confident that the value of the system to incentivize innovation is generally recognized and acknowledged that they see little need to prove that value. This of course is exactly the void to which critics of the system point.
As in many other situations, if those of us involved in the patent system do not move to continue to improve the system, the system will most likely be diminished by those who attack it. The Supreme Court's decision in Myriad Genetics could be one more step in that direction.
Paul F. Prestia is senior counselor and strategic adviser at RatnerPrestia, the firm he co-founded and led as CEO for many years. His current practice is focused largely on IP counseling for risk management due diligence, strategic IP protection and IP value realization.