Abstract:

In this Article, we offer a new design for our patent system with a view

to optimize its functioning. As multiple patent scholars have recognized, the

root cause of the ills of our patent system is the high rate of low-quality

patents. Extant patent law employs a binary screening process, under which

inventions either qualify for protection or fail. Thereafter, all qualifying

inventions are entitled to the same level of protection irrespective of the

degree of their novelty, utility and nonobviousness. As we establish

throughout this Article, patent law’s failure to distinguish among inventions

based on their quality greatly undermines the patent system’s principal

objective of optimally incentivizing and adequately rewarding innovative

progress. Society, at least in principle, ends up paying the same price for

all qualifying inventions, regardless of their level of innovation and

improvement upon the prior art.

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