Few things are politically debated more in the patent area than the presumption of patent validity. The presumption of validity for a U.S. patent is derived from Title 35, Section 282 of the patent statutes. It is based on deference to the administrative correctnesss of the U.S. Patent and Trademark Office, or PTO, when granting a U.S. patent. A challenger to the validity of a patent, i.e., someone who wants to show that the patent does not meet all legal requirements, has the burden to demonstrate the patent is invalid by clear and convincing evidence.

General views on the presumption of validity fall into two basic camps. Some believe it creates stronger value in U.S. technological capital and encourages inventors to seek the limited period of exclusivity provided by a U.S. patent in exchange for giving an idea to the public domain upon expiration of the patent. This is also the primary foundation of the U.S. patent system: promoting technological advancement through public sharing of information. Others believe that the presumption introduces too high a burden of proof when challenging patents in litigation, such that it acts as a bar to attacking what some perceive to be a growing number of weaker U.S. patents that should not have been granted. As a result, “bad” patents may not be challenged, which negatively impacts business competition. There is a continued balancing act between promoting and rewarding innovation and open-market competition. The presumption of validity is one of the legal structures that sits somewhere in the middle of such competing interests.

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