Any effective system of patent administration requires close co-operation between private inventors and government officials. Unlike land, or mining, or even copyright claims, it takes more than a simple filing to perfect a patent claim. The US Patent and Trademark Office (PTO), like similar offices everywhere, must make a detailed examination of all patent applications through examiners who are skilled in the relevant art. Rather than frequently consigning patent validity to the vagaries of litigation, the basic game plan calls for the PTO to winnow out weak claims in order to create a presumption of validity for patents that successfully run the gauntlet. Let the initial screening work be done well and the private commercialisation and licensing of patented technologies can quickly follow. Let the system break down, and the doubts about initial patent validity casts a long shadow over the entire patent system.

Small-government types like myself gag at the necessity of putting any government agency at the throat of the patent system. By way of parallel, I have no doubt that the dilatory and risk-averse protocols of the US Food and Drug Administration keep too many good drugs off the market, even with the accelerated review available under the Prescription Drug User Fees Act. Those chronic FDA delays feed back into the patent system, chewing up large chunks of the 20-year patent period in regulatory proceedings that prevent the patentee from taking its drugs to market.