That causes massive delays in the patent system—results in uncertainty decking innovation

Increased grant delays are only particularly harmful in certain industries." High technology industries, characterized by numerous overlapping rights, such as the computer and biotechnology industries, are especially sensitive to uncertainty in the scope of intellectual property rights that emanates from prolonged pendency." Boundary rights must be defined early in these industries to optimize certainty. In addition, short product life-cycles define many high tech industries."' Thus, timely patent grants are necessary to reap the maximum commercial rewards from the patent right."' The desirability of securing early patent rights in these industries is demonstrated by the fact that applicants in these fields are three times more likely to pursue more immediate continuation practice through requests for continuing examination, rather than delaying prosecution through traditional continuation applications." The evidence demonstrates that applicants in high technology fields benefit from shorter grant lags.

The size of an entity is also extremely important when considering how the backlog will impact its innovation potential. Patent protection is only one of many factors that influence innovation.308 For large firms in high technology fields, the ability to enforce patent rights is not the most important means of protecting R&D investments.309 Small firms, however, rely more heavily on this exclusionary right.310 They are likely to realize less value from uncertain patent protection.311 Therefore, many small inventors and companies argue that they are disproportionately hurt by the backlog. Would-be small firm applicants may forgo R&D efforts if the expected protection of the patent is illusory. 312 Innovators who perceive a decreased value in patent protection may also seek out other means of protecting their intellectual property, such as trade secrets, which deprives society of the important notice function of patents.313