The patent system was designed with the assumption that USPTO would do its job, and switching to an adversarial model for patentability would just make it easier to get obvious patents.
It works unfavorably the other way as well. If you have your patent infringed you have to spend lots of time and money advancing the lawsuit. More, in fact, since the burden of proof is on you to claim infringement. No matter how you slice it the end result will be the biggest organizations with the beefiest legal teams will win all the spoils of patents while independent inventors can only survive by attaching themselves to those behemoths. That's the situation that open patents were designed to prevent. Ideally patents should exist to empower inventors to be able to live off their ingenuity; not for the sake of rent-seekers to bully creators into entering a protection racket.
A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless.
That is the opposite of the way it is supposed to work.
Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive.
If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).
Certainly this is what I was told when I started filing them at my mega corp. 3K for filing, 10K bonus if granted and helping shield the product in case we are served. Our patents can be horse traded to settle a dispute. Because I believed in our team, product etc. it was easy to think we should be capable to defend ourselves; we were the best and that meant the stragglers would come for us using any means available, including patent trolling.
The only upside to patents as originally formulated was they actually traded an implementation blueprint for exclusivity. A worthy trade. Many patents don't even do that anymore, and devolve down to "draw the rest of the owl" tier parking lots on ideas. IP attorneys have done nothing to skew away from this outcome.
Like many weapons systems, patents can certainly serve defensively as well as offensively. In this case, defending against others using them as offensive weapons.
Patents can also have some marketing value.
The one thing the do NOT do is universally stop infringement in real time, which is what people think they do.
If you have a new product/technology, a large company that wants to use it will simply go ahead and litigate it later. You will have a ticket to sue them. They'll have their defensive wall of patents, and maybe you'll make a deal and settle out of court. If not, you'll try to stay afloat and if you manage to fund the suit, in 9-15 years after all the appeals, maybe you get a big judgement.
If it's a small or Chinese company, they'll just run with it, you can sue them, if you're lucky, you'll get an injunction to have products seized at the ports by customs, and you'll never collect a penny at the end because the company will be long dissolved. They'll have stolen some of your market with impunity.
Medium-sized companies might actually respect a patent, because they are intending to stay in business, but don't have unlimited resources.
Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error.
Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense.
I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade.
Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs?
Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors).
Sheesh
[0] https://www.uspto.gov/learning-and-resources/fees-and-paymen...
This will skew the issue towards deeper pockets.
whoever has more money for court battles will win the patent case.
Is that what we want?
What you're basically saying is "every country in the world should have nuclear weapons and then let their respective god(s) sort out the winners if there is a dispute"
Blow away USPTO filing/examination process and replace it with straight arbitration.
