Top-down patent protections flood the courts— a spike would create a wave of suits overwhelming the court

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 "anything under the sun made by man [human].""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 interconnected 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 cannot 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 contributed to the flood of poor quality applications originating from so-called inventors around the world.