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Under the proposed sui generis regime for subpatentable innovation, both novelty and utility would remain requirements. However, instead of non-obviousness, the applicant would need to prove the existence of an innovative contribution beyond the prior art. This contribution would presumably be of social value, which could stem from the market response.92 This proposition does not mean that every type of innovative contribution would necessarily be of social value, given that markets sometimes ignore social value.93 However, in those cases where social value is questionable, market demand results only in a liability rule and not in an exclusive property right.

This Article defines “innovative contribution” as a demonstrable technological advancement beyond the prior art that does not rise to the level of non-obviousness. Under current patent law, non-obviousness refers to situations in which, even though an existing single source does not disclose each and every component of the claimed invention, that invention nonetheless results from an unpredictable combination of components disclosed in more than one pre-existing source.94 According to the doctrine of obviousness, the question thus becomes one of assessing whether an expert in the relevant technical field(s) would find a combination of these elements to be obvious.95

At present, when the U.S. Patent and Trademark Office ("PTO") examines utility patent applications, it already evaluates the statutory criteria of novelty, non-obviousness, and utility.100 If a regime protecting subpatentable innovation were enacted, it is safe to assume that the patent applicant will always prefer to obtain a patent whenever that is possible. By the same logic, however, that applicant would normally prefer to have at least the fallback protection conferred by the liability rule rather than facing unbridled competition if the patent application is ultimately denied. For the sake of efficiency, therefore, [*2060] this inference should be built into the procedural aspects of the system wherever possible. More specifically, under our preferred implementation of the regime, a failure to meet the non-obviousness requirement under the patent application should automatically trigger a secondary evaluation under the eligibility criteria for the liability rule protecting subpatentable innovation. The patent applicant should not be required to make a secondary application if all that the innovation qualifies for is protection under the liability rule.101

Copyrights are not the proper protection to be granted for non-original databases as investment of time, skills, and energy does not merit such protection,526Link to the text of the note and it is legally and ethically unfounded.527Link to the text of the note When the human AI division increases, the human contribution into AI creations processes decreases. For this reason, unlike AI creations in the first and second ages, AI creations in the third age of AI do not merit copyright protection to be conferred to the human creator. The idea is to create, just like as with the databases, a weaker right that will protect the investment provided in the creation of AI by emphasizing the human contribution in these new artworks and inventions. In the third age of AI, the model of the database directive permits to provide the human creator with lower protection for AI creation that would protect the creation for a shorter period. Just as the skills, money, and other resources invested by humans to create a non-original database, the human or the company that created the AI that in turn creates new artistic work will be given a weakened protection which provides for the investment of money, time, and energy in the creation [*669] [footnotes omitted] of the AI creator. There should be a prerequisite for granting such rights to the company or the developer of the AI. In the same way that a database owner must prove "substantial investment in either the obtaining verification or presentation of the contents,"528Link to the text of the note the developer or the company that developed the AI must prove the same substantial investment.

The European Union understood that without legal protection, producers would lack incentive to continue to produce databases.529Link to the text of the note The medium-size ownership regime must also be in accordance with the purposes of IP. By providing the human creator of AI with non-conventional weakened rights for AI creations in the third age, companies, futurists, and entrepreneurs will continue to invest time and money for research and development to improve AI capacities and other technologies. Only by providing weakened IP rights to AI's creators, big technology companies will have the incentive to continue to create and develop AI who in turn will continue to create and invent.

However, substantial regions would also remain below this threshold. Even with an extreme 20°C of warming there would be many coastal areas (and some elevated regions) that would have no days above the temperature/humidity threshold.89 So there would remain large areas in which humanity and civilization could continue. A world with 20°C of warming would be an unparalleled human and environmental tragedy, forcing mass migration and perhaps starvation too. This is reason enough to do our utmost to prevent anything like that from ever happening. However, our present task is identifying existential risks to humanity and it is hard to see how any realistic level of heat stress could pose such a risk. So the runaway and moist greenhouse effects remain the only known mechanisms through which climate change could directly cause our extinction or irrevocable collapse.

This doesn't rule out unknown mechanisms. We are considering large changes to the Earth that may even be unprecedented in size or speed. It wouldn't be astonishing if that directly led to our permanent ruin. The best argument against such unknown mechanisms is probably that the PETM did not lead to a mass extinction, despite temperatures rapidly rising about 50C, to reach a level 140C above pre-industrial temperatures. But this is tempered by the imprecision of paleoclimate data, the sparsity of the fossil record, the smaller size of mammals at the time (making them more heat-tolerant), and a reluctance to rely on a single example. Most importantly, anthropogenic warming could be over a hundred times faster than warming during the PETM, and rapid warming has been suggested as a contributing factor in the end- Permian mass extinction, in which 96 percent of species went 91 In the end, we can say little more than that direct extinct. existential risk from climate change appears very small, but cannot yet be ruled out.

The proposed compensatory liability regime was articulated with the historical problems of the developed industrial world in mind, but it will prove beneficial in other contexts as well. For example, the development of the Internet, digitization, and electronic commerce pose new challenges to small scale innovation. These advances reduce the cost of copying, shrink lead time, and increase the risk that small-scale innovators will take matters into their own hands and create totally unregulated states of artificial lead time through encryption and adhesion contracts. If enforceable, these electronically imposed standard form contracts could degenerate into a basis for asserting private intellectual property rights that override all the public-interest safeguards that had ensured access to the public domain under traditional intellectual property laws. 187 There are serious risks that these standard-form adhesion contracts could thus balkanize the information commons and reintroduce conditions that impede the flow of information.

However, the enactment of a general purpose innovation law on modified liability principles would lessen these risks because it would offer those who innovate in this environment a way to alleviate market failure without impoverishing the public domain. Indeed, the convergence of telecommunications and digital technologies may itself contribute to the operation of the liability regime. Online communication will expedite claim registration, help innovators find the know-how they need, facilitate negotiations, and promote the use of standardized terms. Monitoring use and collecting royalties will likewise prove easier to organize and less costly to implement online.

Another study finds that firms, despite acknowledging that patents are not effective tools to create exclusivity, are patenting to obtain rights that can be strategically useful. Some include blocking rivals from patenting related inventions, using patents to gain low-cost access to another's technology in negotiations and to protect against patent suits.154 This study recognized that some firms were using "patent portfolios to garner licensing revenue."155 Its authors conclude, "our findings suggest that patents are still not the major mechanism for appropriating returns to innovations in most industries."156

In addition to the escalating numbers of patents issued, the number of patent infringement lawsuits has ramped up over the past several years.157 Some have documented that an increasingly large component of those suits in recent years is brought by non-practicing entities.158 According to one study of patent cases filed from 2007 through 2012, "[o]f the ten parties who filed the greatest number of patent litigations in the years . . . studied, all were patent monetization entities."159 These entities have been active asserting patents against small companies. According to one study of 233 technology startups, 79 have been approached with the threat of a patent monetization lawsuit.160

Anti-patents are intended for startups that determine, as an individual basis, that they are better off without the patent system entirely. As a true opt-out, the grant of an anti-patent precludes such entities for receiving any patents on any subject matter during the immunity period.52 Additionally, the prohibition against patenting is critical to increase the public benefit from the proposed program. The information in an anti-patent can be learned, replicated, and varied by those inside and outside the relevant field. This system permits immediate and meaningful dissemination of new technical solutions in an enabled form. This program allows a period of unconstrained creativity within a technology space, and the fruits of that work are then distributed to the public in the form of commercialized products.

(Dr. Uma Suthersanen, Chair in International Intellectual Property Law, Centre for Commercial Law Studies, Queen Mary, University of London, United Kingdom“Utility models: Do they really serve national innovation strategies?,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139963 //pa-ef)

However, from the German perspective (and indeed, as we see below, from the East Asian examples), it is unarguable that a sui generis regime is useful in resolving or avoiding the deficiencies of the current patent system, in terms of cost and speed of securing protection, and in harnessing and diffusing indigenous technologies. One commentator lists the advantages of utility model registration in comparison to patents in Germany, as including: lower costs, lower thresholds in relation to novelty and inventiveness, quicker registration procedure, strategic means of obtaining full protection during the intermediate period between publication and actual grant of a patent.25 This type of reasoning can be easily extrapolated across other established, developed countries.

(Dr. Uma Suthersanen, Chair in International Intellectual Property Law, Centre for Commercial Law Studies, Queen Mary, University of London, United Kingdom“Utility models: Do they really serve national innovation strategies?,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139963 //pa-ef)

A quick summation of the law should start by noting that the term ‘utility model’ has morphed, over the years, into a generic term referring to a second-tier patent system which offers cheaper protection to subject-matter that hinges between patent and sui generis design laws. It is ostensibly a registered intellectual property right which confers exclusive protection for a technical invention. It resembles a patent in that the invention must be new and should display a measure of inventive achievement. Unlike patents however, utility models are often granted without prior examination to establish novelty and/or inventive step. Whilst protection can be obtained more rapidly and cheaply, it will also be commensurately less secure. There is no universal nomenclature to this type of hybrid right. Australian law, for example, has alternatively referred to them as ‘petty patents’, and then as ‘innovation patents’.4 They are called ‘utility innovations’ in Malaysia, ‘utility certificates’ in France, ‘short-term patent’ in Belgium, although the prevailing term remains ‘utility models’ as used in Germany and China. International instruments refer to them synonymously as utility certificates, utility models, and utility certificates of addition.5 Some systems define utility models as incorporeal subject matter including technical concepts or inventions or devices; while others anchor their definitions to three-dimensional forms and exclude plants, methods, biological and pharmaceutical products. A few countries offer second tier protection which adopt normal patent thresholds but without prior examination and for a shorter durations.

A patent is a document, issued by the federal government, that grants to its owner a legally enforceable right to exclude others from practicing the invention described and claimed in the document. Congress allows this right, for a term ending twenty years from the date of filing of an application for patent, to encourage the public disclosure of technical advances and as an incentive for investing in their commercialization.

Another study finds that firms, despite acknowledging that patents are not effective tools to create exclusivity, are patenting to obtain rights that can be strategically useful. Some include blocking rivals from patenting related inventions, using patents to gain low-cost access to another's technology in negotiations and to protect against patent suits.154 This study recognized that some firms were using "patent portfolios to garner licensing revenue."155 Its authors conclude, "our findings suggest that patents are still not the major mechanism for appropriating returns to innovations in most industries."156

In addition to the escalating numbers of patents issued, the number of patent infringement lawsuits has ramped up over the past several years.157 Some have documented that an increasingly large component of those suits in recent years is brought by non-practicing entities.158 According to one study of patent cases filed from 2007 through 2012, "[o]f the ten parties who filed the greatest number of patent litigations in the years . . . studied, all were patent monetization entities."159 These entities have been active asserting patents against small companies. According to one study of 233 technology startups, 79 have been approached with the threat of a patent monetization lawsuit.160

(Tyler, Candidate for Juris Doctor, University of Colorado Law School, 2014; Bachelor of Science, Chemical Engineering and Economics, Northwestern University, 2011.“Would Utility Models Improve American Innovation? Evidence From Brazil, Germany, And The United States,” pg online @ http://www.jthtl.org/content/articles/V12I1/JTHTLv12i1_Boschert.PDF //pa-ef)

As noted in the Introduction to this paper, the American patent system is beset by a range of infirmities that pose a serious threat to innovation in the United States. Foremost among these is the sheer length of time necessary to prosecute a patent application through the USPTO, but several others loom. One such issue, which has received substantial press but is still largely misunderstood by the general public, is a sharp increase in patent trolling.78 These two problems, in combination with others, have led innovators in several fields, most notably software, to begin eschewing the notion of patents completely.79 On first impressions, utility models could arguably address these two major thorns in the side of the American innovator—utility models are quicker and easier to obtain than patents, and they are, under the "weak" utility model system that prevails in the developed world, less valuable to patent trolls because they are much more susceptible to cancellation than patents.80

(Dr. Uma Suthersanen, Chair in International Intellectual Property Law, Centre for Commercial Law Studies, Queen Mary, University of London, United Kingdom“Utility models: Do they really serve national innovation strategies?,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139963 //pa-ef)

This study concludes that strong IPRs do not necessarily lead to development, but that countries have to tailor their regime to pick the appropriate cocktail of IPRs that will suit the national innovative and economic environment.38 A more recent 2013 Australian economic review confirmed that the economic effect of utility models decreases with the rise of technological capacity in industries; the report concluded however that the continued use of utility models in Japan, Germany, France and Italy suggests that these patents may have a role in innovation and economic growth even in developed economies.39

(Dr. Uma Suthersanen, Chair in International Intellectual Property Law, Centre for Commercial Law Studies, Queen Mary, University of London, United Kingdom“Utility models: Do they really serve national innovation strategies?,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139963 //pa-ef)

A well-cited study by Kumar found that in East Asian countries (namely, Japan, South Korea and Taiwan), a combination of relatively weak IPR protection and the availability of second-tier patents like utility models and design patents encouraged technological learning in their developmental years.35 The weak IPRs helped by allowing for local absorption of foreign innovations and R&D spillovers. Second-tier systems encouraged minor adaptations and inventions by local firms. Consequently, such economies became stronger, partly because local technological capacity was sufficiently advanced to generate a significant amount of innovation, and also as a result of international pressure. The report situates India’s experience as being somewhat similar, except that in her case, no second-tier protection was provided. Whilst this apparently did not hurt the growth of Indian chemical or pharmaceutical industries, it may have hindered the development of innovative engineering industries.36

(Dr. Uma Suthersanen, Chair in International Intellectual Property Law, Centre for Commercial Law Studies, Queen Mary, University of London, United Kingdom“Utility models: Do they really serve national innovation strategies?,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139963 //pa-ef)

States, the United Kingdom, Singapore, Sweden and Canada have not embraced any utility model regime.2 2.1 CHARACTERISTICS OF THE ‘UTILITY MODEL’ 3 A quick summation of the law should start by noting that the term ‘utility model’ has morphed, over the years, into a generic term referring to a second-tier patent system which offers cheaper protection to subject-matter that hinges between patent and sui generis design laws. It is ostensibly a registered intellectual property right which confers exclusive protection for a technical invention. It resembles a patent in that the invention must be new and should display a measure of inventive achievement. Unlike patents however, utility models are often granted without prior examination to establish novelty and/or inventive step. Whilst protection can be obtained more rapidly and cheaply, it will also be commensurately less secure. There is no universal nomenclature to this type of hybrid right. Australian law, for example, has alternatively referred to them as ‘petty patents’, and then as ‘innovation patents’.4 They are called ‘utility innovations’ in Malaysia, ‘utility certificates’ in France, ‘short-term patent’ in Belgium, although the prevailing term remains ‘utility models’ as used in Germany and China. International instruments refer to them synonymously as utility certificates, utility models, and utility certificates of addition.5 Some systems define utility models as incorporeal subject matter including technical concepts or inventions or devices; while others anchor their definitions to three-dimensional forms and exclude plants, methods, biological and pharmaceutical products. A few countries offer second tier protection which adopt normal patent thresholds but without prior examination and for a shorter durations. From a global perspective, identifiable common traits within national utility model regimes include the following:6 (1) The laws confer registered, exclusive rights on the proprietor of the right (as opposed to an anti-copying or automatic unregistered right). (2) Novelty is a criterion in all systems, although the standard of novelty varies from universal novelty to local novelty.7 (3) Although registration is a requirement, there is usually no substantive examination of applications. The major points of divergence are: (1) Subject-matter under protection – Some utility model laws protect only the threedimensional form while others extend the umbrella of protection to cover all technologies and processes but exclude controversial subject matter such as pharmaceutical or biological substances, or plant varieties.8 A majority of utility model laws simply adopt the domestic patent law definition of protectable subject matter. The current German Utility Model Act, for example, is the archetypical second-tier regime within a developed nation, where protection can extend to all inventions with important exceptions, including methods, processes or biotechnological inventions.9 (2) Granting procedure – Many systems adopt a simple registration procedure with cursory examination, while a few implement a detailed examination process. In practice, some examining offices offer an optional detailed search facility with the payment of supplementary fees. Other jurisdictions expressly call for a detailed search on validity to be carried out on the commencement of civil proceedings.10 (3) Substantive criteria – Herein lies the greatest disparity between the utility model systems. While all major utility model systems adopt the criterion of novelty, the level of novelty required ranges from universal novelty, to relative novelty, to domestic novelty. A second criterion is usually, though not always, imposed in the form of inventiveness or usefulness. Again, the standard employed for the level of inventiveness varies greatly. There is also a significant propensity within current utility model laws to link the definition of the utility model with an element of industrial application. (4) Scope of protection – A final element of divergence is the duration which can vary from 6 years (for example in France) to 10 years (for example, in Germany, South Korea and Spain), to 15 years (Brazil), with varying restrictions on the specifications and claims of the utility model right. 2.2 INTERNATIONAL RULES The absence of a transnational pattern is reflected in the lack of international norms regarding the nature and extent of a second-tier patent regime. For example, Article 1(2) Paris Convention merely states: ‘The protection of industrial property has as its object patents, utility models, industrial designs, trade marks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.’ Countries are free to formulate or reject utility model protection as they see fit; should a country introduce a utility model regime, it can tailor such a regime to exclusively adapt to local socio-economic conditions and infrastructure. Nonetheless, it should also be noted that Paris Union countries which have a utility model regime cannot discriminate against a foreign rights holders in terms of recognition and enforcement of such utility models pursuant to the generally applicable national treatment obligation.11 Reciprocal national treatment will also apply for select international principles including the right of priority, 12 the importation and forfeiture clauses, 13 and the compulsory licensing arrangements.14 However, the Paris Convention is silent on the definition, nature and scope of the right and protection. The TRIPS Agreement, by incorporating the main provisions of the Paris Convention, extends the WTO dispute settlement system to utility models; but the Agreement fails to establish any other international benchmark for this form of protection.15 A consideration of other international arenas reveals that despite the recalcitrance of international instruments to engage with utility models, these rights are being increasingly recognised within the intellectual property chapters of free trade agreements (FTAs)16 or as investment under some international investment agreements (IIA).17 3. JUSTIFYING UTILITY MODELS The traditional premise within market economies is that patents are necessary tools as they confer a protective buffer on inventors against other competitors. The consequent societal welfare is assured: labour is rewarded, the invention is divulged to the public, further technological innovation is stimulated, and a public knowledge base is incrementally strengthened, upon which a society’s future technological progress will be built.18 Nevertheless, this utopian vision only materialises within certain political, economic and social environments, where intellectual property rights are allowed to act as competitive boosts to innovation and growth. IPRs are often seen as being ‘a drain on learning and source of market power that is inimical to development’.19 Policy and economic rationales underpin the limits placed on national patent law ensuring that not all inventive activities are embraced as being worthwhile of protection. Inventions must fulfil certain criteria under a rigorous examination procedure, whilst other types of subject-matter are excluded ab initio from the patent regime so as to support complementary, and sometimes, conflicting policies in maintaining public domain, competition, health and education. It is now accepted that the monopoly privileges and exclusivity arising from patents invariably effect other public spheres, and the rigorous eligibility standards are essential to prevent excessive patenting.20 So how do we justify the introduction of a sui generis law that potentially undermines the strict demarcations of traditional intellectual property rights? Sui generis rights (such as utility model, design, semiconductor chip, geographical indications or database laws) emanate from the inability of legislators and jurists to stretch the existing three bulwarks of the intellectual property regime to accommodate new things to protect.21 The subject matter, criteria and scope of protection of sui generis regimes inevitably reflect copyright, patent or trade mark characteristics, or a mixture of all three types of intellectual property rights. For instance, the novelty criterion betrays the patent origin of plant variety and utility model laws. Geographical indication laws, with their roots in trade protectionism and product identity, adopt a trade mark approach, protecting signs of distinctive qualities and geographical origins. Nevertheless, a constant battle is fought as to the rationale and scope of such rights. In our case, the questions are varied: Should utility model laws protect all innovations which show a modest level of inventiveness and novelty? Should utility model laws be confined to minor innovations in the field of engineering and construction, and exclude more ‘advanced’ technologies such as computer programs, biotechnology and pharmaceuticals? The following discussion explores such issues by focusing on three main rationales for a sui generis utility model right: (i) ameliorating the defects of the national patent system; (ii) preventing free riding copying, and encouraging innovation, especially in relation to SMEs; and (iii) improving the legal environment in developing countries.

It has been asserted that some startups are sued because they are "simply bona-fide infringers who carelessly failed to conduct the rudimentary patent due- diligence prior to entry."180 Yet the difficulty of doing so should not be underestimated. In the majority of technological fields, the uncertainty inherent in the patent system renders accurate evaluation of infringement at the outset of a project impracticable.181 As one data point, one study examined software patent data and extrapolated that it would require "two million patent attorneys, working full-time, to compare every firm's products with every [software] patent issued in a given year" and that "[a]t a rate of $100 per hour, that would cost $400 billion."182 Because of the uncertainty of claim construction, a final analysis of even a single patent claim cannot be performed with absolute certainty. Rather, whether a new product incorporates another’s invention is rarely ascertainable until trial and appeal are complete, with the attendant that ranges up to over a million dollars.183 This is because patent claims lack the necessary clarity for authoritative guidance.184 Unlike a deed of land, patent claims are drafted using language to attempt to capture new concepts and sometimes “the nature of language makes it impossible to capture the essence of a thing in a patent application.”185 Virtually every infringement occurs because the meaning of patent claims are “inherently indeterminate” and “patent attorneys seize on such indeterminacy to excuse infringement or to expand their client's exclusive rights.”186 Where the stakes are high for either party, the claim text is parsed, or then the court’s interpretation of the terms are re-parsed, until a court of appeals determines the issue on review.187

Unlike real property rights, patent claims capture intangible rights that have proven difficult to ascertain with any certainty.188 It can be impossible to ascertain whether a particular implementation is infringing until after trial and appeal.189 As one source concludes, "claim construction may be inherently indeterminate: it may simply be impossible to cleanly map words to things."190 Under these circumstances, a startup cannot ascertain whether a license is necessary without undertaking the substantial expense, disruption and delay of litigation. The problem is particularly acute in all technology sectors, with the exception of claims that disclose a particular chemical or genetic structure.191 A startup that is developing and planning technological innovation faces a task fraught with risk. This circumstance introduces uncertainty, the potential for large cash expenditures and the potential for a shut down injunction after a product launch.192

(Amy, Professor of Law, Drexel University Thomas R. Kline School of Law, “The Antipatent: A Proposal for Startup Immunity,” pg online @ https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2808&context=nlr //pa-ef)

Certainly, the upward trajectory of patent litigation over the past several years has introduced funding challenges. One study of venture capital investment in these areas concluded that high levels of patent litigation in those fields have a significant negative impact on venture capital investment.382 Extrapolating from this data, and building in certain assumptions, this research stated, “VC investment in new innovations and startups over the past five years would likely have been $109 million higher than it would have been but-for excess patent litigation.”383 It bears emphasis that the antipatent’s proposal is voluntary—only startups that perceive that their opportunities are greater without the patent system will elect to participate. To some venture capitalists, the prospect of backing a firm that can engage in permissionless innovation and distinguishing its products on nonpatent differentiators might be the wiser course.384

(Amy, Professor of Law, Drexel University Thomas R. Kline School of Law, “The Antipatent: A Proposal for Startup Immunity,” pg online @ https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2808&context=nlr //pa-ef)

Immunity from patent lawsuits eliminates the cost, risk, and uncertainty of patent assertion. One venture capitalist points out that permissionless innovation within the software industry “led to the explosion of independently created services on the internet,” and that currently “it [is] becoming impossible to invent new services on the web without the permission of a patent holder who claims to own the intellectual property embodied in your invention.”380 Another concluded that nonpracticing entities are creating difficulties for the acquisition of startups, because buyers “are worried about buying a company and getting sued.”381 Thus, it is not entirely clear that the venture-capitalist community prefers the current system, compared to one that allows a startup to focus on invention and innovation for their first two decades.

(Amy, Professor of Law, Drexel University Thomas R. Kline School of Law, “The Antipatent: A Proposal for Startup Immunity,” pg online @ https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2808&context=nlr //pa-ef)

Nonetheless, one comprehensive study observed that there is “some ambiguity about the role played by patents in securing funding,” and that “patenting may not be a necessary condition for access to entrepreneurial capital.”366 Venture capitalists do not use a uniform strategy, and their methods and criteria for assessing financing decisions vary.367 Other indicators of quality exist beyond intellectual property, including management education and experience, the earning potential of the proposed concept, reasonable capital requirements, and a unique product that will likely manifest a significant competitive advantage, among other things.368 Moreover, the importance of patents to investors varies between different technology sectors.369 For example, patents are more important to venture capitalists investing in biotechnology companies compared to software and Internet startups.370 This same distinction exists for angel investors and other funding sources.371 Significantly, studies have reported that a significant percentage of venture-backed software firms do not hold any patents.372 For those firms that do hold patents, it has been difficult to ascertain whether those patents attracted venture funding, or alternatively whether the cash infusion was used for patent-application fees and attorney time.373

[*20] Obviousness is the most frequently used basis for judicial invalidation of patents. 95 It is also the most frequently asserted validity challenge. 96 With obviousness removed as a basis for post-issuance invalidation, a competitor is less likely to commence litigation that challenges patent validity. Patent litigation can be wildly expensive, 97 and unless an Origination Patentee missed, ignored, or mischaracterized a prior art reference, she can be fairly confident that her intellectual property will be protectable for the statutory period. If the PTO errs by granting an Origination Patent to a minimally innovative, "obvious" invention, competitors and society at large should find consolation in the fact that the unearned monopoly will last, at most, five years. 98 The Supreme Court long ago asserted that delegating the job of "sifting out unpatentable material" to the PTO has a laudatory effect on certainty and the overall stability of the patent system. 99

Revolutionary, pioneering patents, when widely and aggressively enforced, are capable of having a negative, depressive effect upon subsequent experimentation and innovation by others. 100 Minor inventions usually can be designed around. Because the judiciary uses commercial success as a proxy for nonobviousness, 101 only unremarkable, poorly selling inventions would likely be invalidated on obviousness grounds anyway, and such Origination Patents are unlikely to do much societal harm during the period they are even erroneously in effect. Moreover, patents are not usually challenged until several years after they have issued. 102 Indeed, "litigated patents are generally not newly obtained ones; on average, well over a decade elapses between the filing of a patent application [*21] and a court's ruling on the validity of the patent." 103 By the time a competitor feels a need to challenge an Origination Patent, regardless of whether it is a strong patent or would have been vulnerable to invalidation on obviousness grounds, it will be near expiration.