If a patent office grants a patent then shouldn’t the holder of that patent have the right to sue the patent office if the patent is later found to be invalid?
If patent offices were actually held accountable for their decisions then there would be a strong bias towards ensuring that any patents granted were for genuinely novel breakthroughs. It would raise the bar for filing patents significantly since the patent office would seek to hedge the risk of being wrong by raising filing fees. But that’s right and proper surely? Patent offices grant hugely valuable monopolies as it is and the extra due diligence this idea forces them to perform would make those monopolies virtually unassailable. There should be a high bar to pass for something so valuable.
It’s not clear to me why, under the present system, the patent offices do any more than rubber stamp applications. What incentives do they have to perform any due diligence at all? There may be legislative reason for them to analyse each submission but without accountability it’s just waste in the system. Removing that waste reveals the basic function of a patent office today as a registrar of patent claims with all the due diligence performed post-hoc in the courts.
If we could move that due diligence process so it happens before a patent was granted then we would remove one of the largest hidden costs of innovation: the opportunity cost of avoiding patent thickets composed of potentially invalid patents.