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On Addressing Patent Quality

Professor Petherbridge offers his insights in response to the panelists from Addressing Patent Quality: The Theory, Practice, and Implications of the Way Patents Are Granted. Instead of commenting on each article in turn, Petherbridge uses his response to take up “some of the issues in the broader scholarly debate about patents, patent quality, and patent-system reform that . . . are put into relief by the present works.” Petherbridge begins by examining how each article addresses (or perhaps, belittles) the problem of “low quality” patents, asking “Are low-quality patents a problem worth the candle?” Next, Petherbridge explores the two “very different views [presented by the three works] about how a patent system might operationalize the exclusive rights that it promises,” focusing especially on Professors Burk and Lemley’s proposal to move back to a central-claiming regime to determine a patentee’s exclusive rights. Despite Burk and Lemley’s “well written and forcefully presented” arguments, Petherbridge offers several reasons why the reader should be cautious in accepting Burk and Lemley’s conclusions “hook, line, and sinker.” Finally, Petherbridge considers the insights of the three works into such “seminal” concepts of patent scholarship as the economic function of patents and whether we should even have our current patent system.