104 Iowa L. Rev. Online 1 (2019)

DOWNLOAD PDF

Abstract

Academics and others may get greater uptake of their policy ideas if framed not only as policies to enact but experiments to try and to learn from. A companion article, Rigorous Policy Pilots, lays out a framework, “MATTER” for proposing policy experiments, shorthand for specifying questions that matter, relevant authority, the underlying theory of change, testing protocol, evidence and resources. Applying it to the US Patent and Trademark Office, which has shown a willingness to experiment with new approaches before adopting them, this essay proposes several rigorous pilots for addressing some the patent system's most enduring challenges: ensuring that the patents granted by the Office are of high quality, and ensuring the full participation of US innovators in inventing (“inclusive innovation”). To overcome challenges in measuring the effectiveness of agency action, the essay proposes taking advantage of natural experiments, natural yardsticks, and independent or synthetic assessments.

A "search first" pilot would give applicants the option of requesting that all of the relevant prior art in their case be provided "up front," through the examiner's initial searching of the entire specification rather than just the claims, following the approach of jurisdictions that bifurcate search and examination. The early certainty would help applicants make early determinations about whether or not the patent was worth pursuing. Quality pilots, in general, could also more explicitly measure the robustness of prior art vetting as a quality metric, given the "prior art gap" between US examiners and others reviewing a patent. Piloting development of "error detection technology" for vetting compliance with the Patent Act's Section 112 disclosure requirements, following previous examples of agencies adopting outside technology, could also help close the applicant readiness gap that this essay documents between smaller and larger inventors, enhancing both inclusion and patent quality. Finally, the essay proposes a pilot for testing for the presence of implicit gender bias in the award of patents to help get at the root causes of the 7-21% difference in patent grant rate between male and female-led inventions.