The perception of the plan drives litigation—increasing costs and uncertainty in the patent review system

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 propatent 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 liti-gation setup emboldens patent holders. It also makes alleged infringers more likelv 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 propatent and pro-patentee setup keeps the applications coming.