Turns innovation—backlogs cause uncertainty in patents

While uncertainty extends until the expiration of the patent, it begins far before the patent is granted. The term of a patent grant is calculated from the date of filing, but that right is not enforceable until the patent is issued. Delayed examination "makes it difficult for companies to know what rights will be granted to competitors based on their claims in patent applications." 2 58 Therefore, timely examination is an important first step in managing the level of uncertainty that flows from the already disruptive influence that quasi-monopolistic patent rights impose on the market.

During prosecution, the various strengths and weaknesses of the applicant's claimed invention are affirmed by an (un)biased third party. There remains a strong legal presumption that an issued patent is valid. While there is roughly a fifty percent chance that a litigated patent will be invalidated post-grant, 6 examination plays an important role in drawing boundary lines.6' Issuance of the patent grant is a signal as to how the government and the patent holder understand the contours of that right to exclude. Or at least, it is a recognition of the patent holder's highly probabilistic right to exclude.212 The longer an application stagnates without USPTO review, the less certainty the applicant, potential investors, and competitors have in the validity and inevitable enforceability of the patent. Unfortunately, quantifying the actual societal harm caused by this increased level of uncertainty is impossible. It merely adds another variable to the stochastic nature of patent rights.