Stronger patent protection inherently leads to flooding courts with litigation costs – international pharma companies and patent trolls are pulled to the US patent system due to the patentee-favored system

3. Substantive Patent Laws - If You Build It, They Will Come Another reason applicants have inundated the USPTO with applications is because U.S. patent law has exceedingly liberal requirements for patentability and strongly favors patent holders. Thus, the appeal of a U.S. patent is generally much greater than patents in other jurisdictions. As discussed earlier, the USPTO must not discriminate on the grounds of national origin when extending patent protection. The office also does not discriminate on the grounds of subject matter, and seemingly, any true showing of an inventive step. Coupled with the empowerment of the U.S. patent holder in court, applications flood the office from all over the world. The scope of endeavors contemplated by the U.S. patent system certainly drives application numbers. In the United States, an inventor may seek a patent for "any- thing under the sun made by man.""3 Patent protection has recently been extended to inventions directed towards biotechnology in Diamond v. Chakrabarty,"' computer software in Diamond v. Diehr,3 and even methods of doing business in State Street Bank & Trust Co. v. Signature Fin. Group, Inc."3 This expansion of patentable subject matter has partially contributed to the increase in applications." In the wake of Chakrabarty"' and the Bayh-Dole Act,"' there has been a flood of biotechnology patents on early stage research."' While the extension of patent protection to computer software inventions has received critical attention, the rise of so-called business method patents has been seen as a blight on innovation, and the USPTO."' Following State Street,"4 the number of business method applications has exploded."' Accordingly, the backlog and pendency periods in the art unit responsible for examining these applications are staggering.4 These changes in patentable subject matter impact non-resident filings as well. The rest of the world is not as liberal in its protection of biotechnology inventions.' Likewise, the granting of software and business method patents by the USPTO has a tremendous extraterritorial impact. The world's other major markets have been far more hostile towards extending patent protection to these abstract inventions."' But, "in an inter- connected internet world, software patents granted in one key jurisdiction will have a global impact. Foreign applicants are therefore encouraged to get in on the act or suffer the business consequences, even if their applications would be refused in Europe or Japan."' Therefore, foreign filings directed towards USPTO-exclusive subject matter have a considerable impact on application numbers. While the pool of patentable subject matter has expanded greatly, the depth of that pool is shallow...very shallow. An applicant that meets the requirements of patentability "shall be entitled to a patent."1' The primary gatekeeper of patentability is that an invention not be obvious to the person having ordinary skill in the art." But the gatekeeper is failing.' The doctrine of non-obvious relegates the decision of patentability to a series of abstract tests rather than a true assessment of commercial merit and societal benefit."' As a result, examiners can-not seem to reject applications no matter how trivial. Seemingly, the concept of if you build it, they will come, holds true to patentees; low thresholds incentivize applications. And applications have been filed for the most frivolous, underwhelming, and arguably blatantly obvious "inventions," and patents have issued." 'There has been "a proliferation of patent awards of dubious merit"' This lessened threshold further encourages applications from non-residents who view the USPTO as more likely to grant a patent that would be rejected elsewhere." This low threshold has con- tributed to the flood of poor quality applications originating from so-called inventors around the world. The strength of the patent right also drives application demand. The patent holder's ability to sue those who infringe the patented invention is the government's quid pro quo for the patent holder's disclosure of the underlying innovation to society And the government lives up to its end of the bargain by extending powerful rights to patent holders. There is a strong presumption that an issued patent is valid and this showing can only be rebutted by a potential infringer by clear and convincing evidence." The patent holder, however, must prove infringement by a mere preponderance of the evidence.' The deck is clearly stacked against infringers from the start. It only gets worse for alleged infringers from there. Courts have become markedly sympathetic to patentees since the creation of the Court of Appeals for the Federal Circuit in 1982."6 Also, the infringement action is more liberally construed in the United States. The doctrine of equivalents extends the exclusionary power of the patent to cover substantial similar products that are the equivalent of the claimed invention. ' This form of infringement is rarely adopted elsewhere. 6 The actual work that this doctrine does for patent holders has been questioned. 63 But, its mere existence is another strong, if only symbolic, indication of a distinctly pro-patent legal system. Further tilting the scales are the drastic remedies available to patent holders,164 the uncertainty that accompanies jury trials, 61 and the exorbitant costs of defending an infringement action.66 This pro-patent litigation setup emboldens patent holders. It also makes alleged infringers more like- lv to settle, even when the asserted patent is of questionable quality. 6 Either way, patent holders win. If you know you are always going to win, why wouldn't you play? Thus, the unquestionably pro- patent and pro-patentee setup keeps the applications coming. 4. Strategic Reasons - Patents as Poker Chips & Ballistic Missiles A shift in the paradigmatic value of patents has also increased the number of applications. Traditionally, the patent grant has been recognized as "an efficient method of enabling the benefits of research and development to be internalized, this promoting innovation and technological progress.""'9 However, patents are often sought for reasons far removed from recouping R&D investment costs and product commercialization. '7Applications are filed for a diverse number of strategic reasons. Patents are routinely treated as poker chips, facilitating the bargaining for technology necessitated by the interdependence of the Information Age. In addition, firms increasingly seek to amass broad and overlapping patent rights as a means to threaten competitors when bar- gaining fails. There has been a clear shift in the commercial value of information technology and, as a result, the value of patents.' Knowledge is to the 21" century what capital was to the 20' century.172 Fixed material assets are no longer essential to commercial success; access to technology drives progress. During the Industrial Age, one commercial product could easily be covered by one patent. But, in the Information Age, one commercial product may be covered by tens, hundreds, or thousands of patents owned by diverse entities.' Accessing such a degree of tech- nology requires cooperation, often with competitors, to leverage outside knowl- edge-based resources.' Innovation is the product of interdependence.'' In many industries, patent licensing arrangements are essential.'" Thus, patent holders can derive value from the patent by licensing this exclusive right.'" Even companies who do not practice the patent can still extract financial value through licens- ing.1 In fact, most patentees are only able to realize the patent's value by collaborat- ing with others.1' In addition to recovering R&D costs and generating licensing revenue, patents are also valuable as an indicator of firm health and staff performance, a means to access capital investment, and as a means to pro- tect market position.'" Patents, like poker chips, can be used as a status symbol, a nec- essary buy-in to a revenue stream, or sim- ply cashed in for monetary value. Innovators need access to patented infor- mation. As a player's patent portfolio grows, its relative bargaining power at the table over others who need access to the information grows. Therefore, patents serve an important part in commercial negotiations. There is a constant struggle to gain more chips; more information access.