Liability can serve as a fall back to increase confidence

At present, when the U.S. Patent and Trademark Office ("PTO") examines utility patent applications, it already evaluates the statutory criteria of novelty, non-obviousness, and utility.100 If a regime protecting subpatentable innovation were enacted, it is safe to assume that the patent applicant will always prefer to obtain a patent whenever that is possible. By the same logic, however, that applicant would normally prefer to have at least the fallback protection conferred by the liability rule rather than facing unbridled competition if the patent application is ultimately denied. For the sake of efficiency, therefore, [*2060] this inference should be built into the procedural aspects of the system wherever possible. More specifically, under our preferred implementation of the regime, a failure to meet the non-obviousness requirement under the patent application should automatically trigger a secondary evaluation under the eligibility criteria for the liability rule protecting subpatentable innovation. The patent applicant should not be required to make a secondary application if all that the innovation qualifies for is protection under the liability rule.101