Eric Williams
The problems associated with the existence of bad patents and the need for an effective, inexpensive vehicle for challenging them are nothing new. Over the past twenty-five years, several laws were proposed and passed intending to remedy these ills. Most recently, Congress introduced a bill aimed at curbing the adverse effects of bad patents, and prominent policy organizations and commentators advocated for, inter alia, the adoption of a new post-grant opposition as an antidote to the poison of bad patents. While these recent developments are certainly promising, without due attention given to the “advancement or social benefit gained thereby,” such measures may fall upon deaf ears or fail to reform the patent system in a manner that furthers the constitutional mandate of promoting the public welfare. Part II of this paper briefly explains the meaning of bad patents and then summarizes past legislative attempts to design an administrative review procedure for correcting them. Part III discusses the provisions of an administrative post-grant opposition procedure contained in a patent reform bill recently introduced in Congress. Part IV provides a public welfare rationale for adopting a new administrative post-grant opposition highlighting the adverse public effects of granting bad patents. Part V argues for the addition of specific provisions to the current bill that better serve the constitutional purpose of advancing the public’s welfare.