Patent office resources are constrained
Li Liu ’24, March 18, Oxford Intellectual Property Research Centre, St. Catherine’s College, University of Oxford, Oxford, UK, “Patent Quality: A Critique of the State of the Discussion,” IIC – International Review of Intellectual Property and Competition Law, Volume 55, pages 499–529, (2024) accessed July 9, 2024, https://link.springer.com/article/10.1007/s40319-024-01444-w
A further criticism is from Ghosh and Kesan, correctly noting that Lemley overlooks the social benefits of valid patents and the social costs of invalid patents, which are multiprongedFootnote 153 and not as easy to ignore as Lemley claims. As an alternative, the authors propose “optimal ignorance,” which means “a patent agent acquires as much information as is necessary to ensure that socially desirable patents are granted.”Footnote 154 However, this alternative is self-contradictory and possibly even more controversial than rational ignorance. On the one hand, it admits that the USPTO faces physical constraints in time and costs as well as mental constraints such as bounded rationality.Footnote 155 On the other hand, it establishes the almost insurmountable task of ensuring that issued patents have a net positive social benefit,Footnote 156 without providing a clear test for evaluating the benefit of an individual patent to the whole society. Neither analyses nor data are provided to suggest that the intensive examination required by optimal ignorance can be achieved with limited resources. It seems that the acknowledgement of resource constraints does not preclude the authors from proposing a more resource-consuming solution.