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Congress must certainly stop patent trolls. But there are even bigger problems with patents. Patent examiners are overwhelmed, prosecution goes on forever, and allowance is capricious. The whole process is far too expensive. The only solution is to eliminate patent examination. Inventors would file their inventions and elaborate their claims as a matter of record. If they ever needed to assert the claims, the PTO, a private hearing system, or a court of law would adjudicate expert testimony presented by the litigants. In addition to eliminating the granting of ridiculous patents by overworked examiners, this system would solve the patent troll problem because patents could not be used as blunt instruments to extract settlements. Patent holders would expect that the assertions they make in their patent filings would be properly examined with respect to the specific circumstances. Getting by at the PTO would no longer give the lucky patent holder a weapon to intimidate.
Toggle Commented Jul 22, 2013 on Patent Trolls—Posner at The Becker-Posner Blog
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Jul 21, 2013