51:2 Proliferating Patents and Patent Law’s “Cost Disease”

Abstract

Whether or not the patent system is truly in “crisis,” it is certainly under considerable strain. This Article uses a variety of statistics to analyze the U.S. patent system’s development through time. These include not only already readily available statistics such as the numbers of U.S. patents issued per year, but also yearly statistics for the number of U.S. patent examiners and for the number of full-time-equivalent U.S. research-and-development employees—statistics that seem to have previously appeared only in relatively isolated and scattered fashion. Through analysis of various selections, combinations, and variants of these statistics, including logarithms and ratios, the Article seeks to develop a better sense of what concerns with the U.S. patent system such figures most persuasively suggest. A key point is that, although recent percentage rates of growth characteristic of the U.S. patent system might be nowhere near the ballistic levels of the nineteenth century, the rate at which patents issue is still typically accelerating. This acceleration predictably creates tension as public and private bureaucracies, as well as individuals, struggle to keep up. The Article characterizes resulting strains as symptoms of a variant of William Baumol’s more general “cost disease” for services. The Article discusses potential responses, including greater worksharing with foreign patent offices, increased privatization of examination functions, more effective U.S. Patent and Trademark Office rulemaking, or partial automation of examination.