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Innovation for the 21st CenturyHarnessing the Power of Intellectual Property and Antitrust Law$
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Michael A. Carrier

Print publication date: 2009

Print ISBN-13: 9780195342581

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195342581.001.0001

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Better Patents: A Post-Grant Opposition Procedure

Better Patents: A Post-Grant Opposition Procedure

Innovation for the 21st Century

Michael A. Carrier

Oxford University Press

This chapter begins by detailing difficulties with the application process at the U.S. Patent and Trademark Office (PTO) that explain the issuance of invalid patents. It then shows why this problem is not effectively addressed by other means (litigation and reexamination). It demonstrates the benefits of a post-grant opposition system that would allow any party to challenge a patent after it is issued. They system would provide a quicker and cheaper determination of validity than litigation, and would target the most valuable patents. It would allow the PTO to access important information held by competitors. It would reduce uncertainty, thereby encouraging investment and commercialization. It would also reduce the number of invalid patents and it would benefit antitrust law.

Keywords:   patent application, invalid patents, innovation, patent litigation, patent reexamination, post-grant opposition system, post-grant opposition timing, post-grant opposition estoppel

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