BYU Law Review


Since 2000, the U.S. Patent & Trademark Office (“PTO”) has published nearly all patent applications as they are submitted by applicants. Scholars and practitioners have praised this practice for providing timely notice of the potential legal rights the application may eventually cover. But maximizing timeliness and transparency in this way can also create significant costs, which may chill innovation and deter the development and funding of new research areas. This Article explores these often-unrecognized costs of publishing unexamined patent applications and proposes solutions that balance the benefits of early notice with the costs of patent system uncertainty. Published patent applications are essentially an initial guess of what the applicant hopes will become the boundaries of his intangible private property and a speculative attempt at demonstrating its possession. Even if they are never granted, these published applications occupy the patent idea space and can lead to examination and third-party search errors. Published applications can thus contribute to costly unpredictability in the patent system more broadly by preventing others from getting a patent and by creating a temporary cloud of uncertainty around what constitutes excludable private property. Fortunately, there are solutions. Shifting some of the public notice costs to the applicant can be used to potentially increase the quality of information in patent applications, and to reduce the number of lower quality filings. Alternatively, reform efforts can focus on providing the applicant and the PTO with more information in the early stages of examination, enabling them to make an informed choice about whether an application (or a portion thereof) is valuable enough to be published.


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