Secondary innovation is way too costly

In a regular patent system, all users partially subsidize the cost of clearance by paying fees to the examining agency and receiving a substantive examination prior to the grant of patent protection. By contrast, in a second tier patent regime without pre-grant substantive examination, the responsibility for applying the substantive standards of patentability is shifted to the judiciary, and the costs are correspondingly borne by the litigants. In practical terms, the result is that private actors will more frequently face the need to procure clearance opinions to ensure that their proposed activities do not infringe valid second tier patent rights. Those clearance opinions will unquestionably be highly complex, given the elusive nature of the relaxed inventive step standard. This could translate to greatly increased costs of doing business for all enterprises in a given area of technology, and SMEs are presumably least well-positioned to handle such costs.186 Another possibility is that private actors will routinely find it necessary to initiate administrative revocation proceedings. Experience with post-grant opposition in Europe may indicate that the costs of such procedures will be significant.18 7