Antipatents solve.

This article proposes a voluntary opt-out system for emerging companies. Unlike a patent right to exclude, this proposal is for an anti-patent, which has the opposite purpose. Essentially, an anti-patent allows the owner to opt out of the patent system for a limited twenty-year term. This program includes two fundamental components. First, approved participants will obtain qualified immunity from all third party patent infringement assertions. During the immunity time period, a startup in the program will not acquire any liability for non-willful infringement of any patents. The entity can participate in permissionless invention and innovation—that is, the startup can experiment, invent, develop, and commercialize a product without any obligation to pay patent license fees or to respond to infringement allegations by patent holders. Secondly, as a true opt-out program, the entity must forgo obtaining any patents for all inventions developed during that time. The work performed by the entity during this time passes to the public domain.

Congress has the ability to create statutory immunity to insulate a person or entity against liability for patent infringement.40 As with other types of legal immunities, no liability inures to a startup that has a granted anti-patent. This program proposes a broad scope of immunity that protects the startup from all assertions of patent infringement for all work performed by that entity during the term. Thus, the immunity prevents lawsuits from those asserting patent claims that cover all, or any aspect, of the startup’s activity. This includes patents that read on the startup’s entire product and processes, as well any portion of either, and subsequent projects. The immunity applies to all theories encompassed by direct and indirect infringement, and applies to products and processes that are in development, as well as those that are commercially available. As a practical matter, the anti-patent eliminates any expense or uncertainty for a license, litigation, or court-imposed remedy.

Any suits that might be filed against the entity would be subject to a motion to dismiss asserting immunity as a complete defense. Disposition using this method is dramatically less expensive compared with full-scale litigation that typically runs into millions of dollars. Immunity allows startups to focus on research and development, invention, and innovation. Although the immunity time period can be varied, this proposal contemplates that the program match the current patent term of twenty years from the date of the application provides the maximum benefit to the public.

The present proposal is feasible under current administrative and court structures. Startups who seek to opt out can file an application that is akin to those filed to secure patent protection at the U.S. Patent & Trademark Office ("PTO"). This application must include disclosure and at least one claim for an invention that meets all of the requirements of the Patent Act. However, there is a critical distinction for an anti-patent. If this application is granted, no patent is issued and no right to exclude exists. Instead, the applicant is granted qualified immunity against all third party patents. As a true opt-out, that inventive entity cannot obtain the rights to any patent during the twenty-year anti-patent term.

This breadth of this immunity warrants careful examination procedures at the PTO. Typical examination of patent applications results in a significant number of erroneous grants.41 Because immunity applications will not be asserted against any entity, validity challenges in the courts might never occur.42 To minimize errors, the PTO must implement strict review standards. These include a requirement that the applicant perform a high quality prior art search prior to filing, and once an immunity application is received, subjected to an intensive search and level of review.43 To further decrease the error rate, the patent examination should adopt the “second pair of eyes” method used to scrutinize problematic business method patents.44

Under this proposal, published and granted anti-patents have preclusive effects that parallel the current law for patents and published applications. In other words, the disclosure of published anti-patent operates as prior art to prevent others from obtaining patent rights on the disclosures set forth therein.45 The logical conclusion from the operation of these rules is that others cannot obtain a patent for the same invention or any nonobvious variant that appears in the anti- patent’s disclosure. Rather, the disclosures from the anti-patent and any commercialized products offered for sale inure to the public domain. Because anti-patents cannot be asserted or infringed, others are free to use the information disclosed therein to replicate, vary, design around, and improve the technology disclosed therein.