These problems could in theory be fixed with more money. But resources aren’t the only issue. The extent and quality of Patent Office review is also limited by the fact that the process is not adversarial. Indeed, the only parties involved in Patent Office review are the applicant and the applicant’s lawyers — people with an obvious incentive to see the application move forward. Contrast that with litigation, where patent plaintiffs have to square off against very motivated patent defendants.

Why, then, does the current system discourage juries from second-guessing the Patent Office? The primary reason is that judges are reluctant to invite lay jurors to overrule the experts. That makes sense in the abstract. But in practice, even the best examiners are so overwhelmed and so poorly informed that the benefits of their expertise are fully dissipated. Juries know less, true, but at least they get to see a complete evidentiary record and to hear arguments on both sides.

The consequences of misplaced Patent Office deference are significant. A patent holder whose patent covers a technology that was in fact obvious to the world has a strong incentive to sit quietly after the patent is issued. Other parties will inevitably come up with same idea on their own; when they do, the patent holder can threaten litigation and as a result extort cash from companies that neither knew of nor remotely benefited from the patent holder’s work. Indeed, a growing number of “patent trolls” employ this exact strategy today, using bad patents to literally tax legitimate business activity.

If the current approach were abandoned and juries were instead given real freedom to review patent validity, not much would change at the Patent Office. Examiners would still evaluate the validity of patent applications and document their views. And, in the event of litigation, those views would still be admissible in court. The key difference would be that the examiner’s view would then rise or fall on the merits, rather than enjoying substantial deference from the jury.