A common theme of most proposed changes is to make it more difficult to obtain or keep a patent by granting a government administrator or judge greater discretion in various procedures to determine whether a patent should issue or remain in force. These procedures go by various names — enhanced examination, opposition, re-examination and second-window review. In addition, the U.S. Supreme Court just raised the bar for obviousness in KSR International Co. v. Teleflex Inc., 127 S.Ct. 1727.

The common goal is to make it easier for decision-makers to reject patents, usually on the basis of “prior art” — whether the claimed invention was previously known. This may seem like a good idea: Its proponents claim it will cut costs and eliminate patents on things that are already being done. But on closer inspection, it creates more problems than it solves.

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