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For nearly two centuries, an inventor applying for a U.S. patent has been required to obtain the opinion of an expert who has searched the prior art and determined that the inventor’s application meets the standards of patentability. And for nearly two centuries, those expert opinions could be obtained only from a single office run by the U.S. government. The patenting monopoly, which is almost certainly undesirable, is now being eroded. Rising global trade and technological sophistication have increased the number of patent filings in every country; government patent offices here and abroad are thus being driven to rely on patenting opinions from other public and private entities. For demonopolization to be effective, however, entities determining patentability must have high-powered incentives to make accurate judgments. Two disciplining mechanisms may be particularly useful: (1) randomly selecting private patenting opinions for an intensive governmental evaluation, with fines imposed on any examining firm if its opinion is found to have led to the issuance of an invalid patent, and (2) authorizing legal challenges to patents by private attorneys general. This article offers preliminary assessments of the optimal design of these and other disciplining mechanisms.

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GWU Legal Studies Research Paper No. 2013-99; GWU Law School Public Law Research Paper No. 2013-99

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