Forging a New Compact: A Framework for Collaborative Patent Grants in the United States

Rogers, A.A*, Jones, C.J*, Smyth, D.J*

*Patent Thinktank, Swanson Reed | Specialist R&D Tax Advisors

September | 2025

Section 1: The Imperative for Reform

The U.S. patent system is facing a convergence of three interconnected crises: a paradox of patent quality, debilitating examination delays, and a litigation ecosystem that often rewards strategic maneuvering over genuine innovation. These are not disparate issues but symptoms of an underlying systemic dysfunction.

1.1 The Patent Quality Paradox

The debate over patent quality reveals a complex trade-off between two distinct types of examination errors, both of which inflict significant harm on the innovation ecosystem.

Type 1 Errors (Granting Invalid Patents): There is widespread concern that the USPTO issues patents with overly broad or invalid claims that do not meet statutory requirements for novelty and non-obviousness.[1, 2] These low-quality patents can create a "tragedy of the anticommons," where a dense thicket of questionable IP rights blocks new entrants and follow-on innovators from bringing products to market.[1, 3] This problem is exacerbated by the activities of NPEs, who acquire and assert these patents in litigation.[1]

Type 2 Errors (Rejecting Valid Patents): Conversely, recent analysis suggests that the singular focus on Type 1 errors may be misplaced. The USPTO's Type 2 error rate—the improper rejection of applications for valid inventions—is estimated to be significantly higher than its Type 1 error rate.[4] While Type 1 errors create litigation costs and market friction, Type 2 errors strike at the heart of the patent system's purpose by directly discouraging R&D investment and diluting the incentive to innovate.[4]

1.2 The Pendency Problem

The administrative challenges at the USPTO are most visibly manifested in a persistent and growing backlog of unexamined patent applications. These delays are not mere procedural inconveniences; they represent a significant drag on innovation.

The number of unexamined utility, plant, and reissue patent applications surged to nearly 794,000 by 2024, a 23.5% increase from approximately 643,000 in 2021.[5] The total number of pending applications now exceeds 1.19 million.[5] The average time until an applicant receives a first office action from an examiner has climbed to nearly 20 months. For applications that require a Request for Continued Examination (RCE), the total pendency from filing to final disposition has reached 30 months.[5]

1.3 The Shadow of Litigation

The U.S. patent system is profoundly shaped by a hyper-litigious environment, dominated by entities that have weaponized the system's inefficiencies.

The NPE, or "patent troll," business model is predicated on acquiring patents not for the purpose of commercializing an invention, but solely to generate revenue through aggressive licensing demands and litigation.[6, 7, 8] NPEs are the dominant players in patent litigation, responsible for almost 73% of all cases by 2022.[1] This business model thrives on the systemic weaknesses of patent quality and pendency, creating a vicious cycle that ultimately acts as a tax on innovation.[7, 9, 10]

Table 1: Key Metrics of U.S. Patent System Inefficiency (2021-2024)

Metric	2021	2022	2023	2024	Source(s)
Unexamined Application Backlog	~643,000	-	-	~794,000	[5]
Total Pending Applications	>1.0M	>1.0M	>1.0M	>1.19M	[5]
Average First Office Action Pendency (Months)	16.9	-	20.5	19.9	[5]
Average Total Pendency with RCE (Months)	28.5	-	-	30.0	[5]
NPE Share of Patent Litigation (Annualized)	-	~73%	-	-	[1]
Court Invalidation Rate of Litigated Patents	~40%	~40%	~40%	~40%	[11]

Section 2: Alternative Paradigms: A Certainty-First Approach

To address systemic challenges, it is instructive to examine alternative paradigms. Several international patent systems have proactively explored a fundamental shift in examination philosophy. These initiatives represent a "certainty-first" approach, prioritizing the establishment of a clear, agreed-upon scope of the invention and prior art before the formal process of securing rights begins.

Key Tenets of a Certainty-First Model:

• Focus on Early Stages: Intervening at the earliest stages of claim development and prior art searching.[12]
• Opt-In Collaborative Process: A voluntary, pre-filing process where the inventor, attorney, and examiner collectively assess the invention's characteristics.[12]
• Digital Collaboration Platform: A dedicated digital platform, potentially augmented by AI, to facilitate collaboration.[12]
• Facilitating Broader Collaboration: Supporting and encouraging partnerships between universities and industry to navigate IP matters in joint research projects.[13, 14]

Section 3: Precedents for Partnership at the USPTO

The concept of a more collaborative patent system is not entirely foreign to the USPTO. An analysis of past efforts reveals both the potential and the pitfalls of such initiatives, highlighting a crucial missing element: a structured, non-adversarial forum for direct dialogue between the applicant and the examiner aimed at cooperatively resolving issues.

3.1 The Peer-to-Patent Experiment

This pilot program attempted to leverage crowdsourcing to improve patent quality by allowing the public to submit prior art for volunteered applications.[15] While it demonstrated the potential of public input, it struggled with inconsistent participation and difficulties integrating submissions into the rigid workflow of examiners.

3.2 International Worksharing: The Collaborative Search Pilot (CSP)

The CSP is a work-sharing program between the USPTO and its counterparts in Japan and South Korea, where examiners exchange prior art search results.[16, 17] While it has shown benefits in accelerating prosecution, its primary limitation is that it represents a collaboration between patent offices, not a direct collaboration between the applicant and the examiner.[18]

Section 4: A Proposed Framework: The U.S. Collaborative Examination Pathway (CEP)

Synthesizing the systemic needs of the U.S. system, the philosophical approach of alternative international models, and lessons from past USPTO programs, this report proposes the creation of the U.S. Collaborative Examination Pathway (CEP). The CEP is a voluntary, phased approach to examination designed to produce higher-quality, more certain, and more reliable patents in a more efficient manner.

Phase I: Structured Pre-Examination Conference and Prior Art Curation

This phase is dedicated to establishing a common factual foundation. It involves a mandatory, recorded conference where the applicant, their attorney, and the examiner jointly review all submitted prior art, establish an agreed-upon "prior art universe," and proactively identify potential issues before a formal rejection is drafted.

Phase II: Expedited Collaborative Prosecution and Resolution

Building on Phase I, the examiner issues a single, comprehensive "Collaborative Office Action." The applicant provides a single, comprehensive response. The goal is to achieve final disposition—allowance or final rejection—within a highly compressed timeframe, such as six months from entry into the CEP.

Table 3: CEP vs. Traditional USPTO Examination

Process Stage	Traditional Pathway	Collaborative Examination Pathway (CEP)
First Examiner Action	After 20-month average wait, examiner issues First Office Action on the Merits, typically with rejections.[5]	Phase I: Mandatory Pre-Examination Conference to jointly review prior art and discuss potential issues.
Subsequent Actions	Process repeats with further office actions, extending pendency to 30+ months.[5]	Applicant files a single, comprehensive response. A final resolution conference may be held if needed.
Interviews	Optional, typically held after a rejection to argue against the examiner's position.[19]	Mandatory conference held before any rejection to cooperatively define issues.
Expected Outcome/Timeline	26-30+ months to disposition. Results in a patent whose prosecution history is a record of adversarial negotiation.[5]	Goal of 6-9 months to disposition. Results in a patent whose validity has been cooperatively vetted.

Section 5: A Proposal for a U.S. Collaborative Patent Grant Program

To accelerate the adoption of the CEP and further stimulate innovation, this report recommends the creation of a U.S. Collaborative Patent Grant program. This program would provide targeted financial incentives to small businesses to offset the significant costs of patenting.

A Grant of up to $50,000 per patent family is proposed.

This amount is grounded in the real-world costs of the patenting process and aligns with established precedents for federal support of innovation, such as the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs.[20]

A $50,000 grant would be sufficient to cover the typical total cost of obtaining a U.S. utility patent—estimated to be between $15,000 and $30,000—and provide a substantial foundation for securing protection in key international markets.[21, 22]

Section 6: Measuring Success: The Role of a Simplified Innovation Metric

To effectively gauge the impact of these initiatives, a clear and accessible metric for tracking innovation output is essential. Swanson Reed's inventionINDEX offers a compelling model for this purpose.[23, 24]

6.1 The inventionINDEX: A Straightforward Approach

The inventionINDEX measures a state or country's innovation output by directly comparing the growth in patent production with the growth in GDP.[23] This creates a single, easy-to-understand score that provides a high-level sentiment on innovation trends over time.[23]

6.2 Embracing Simplicity Over Complexity

Critics argue that the index's simplicity is a flaw, as it overlooks inputs like education and business sophistication and prioritizes patent quantity over quality.[25] However, it is precisely this simplicity that makes the index powerful. It provides a clear, direct signal of innovation output that is accessible to policymakers, investors, and entrepreneurs alike.[26] The concern about patent quality is addressed by the very structure of the proposed CEP, which is designed to produce higher-quality patents.

6.3 Empowering a New Generation of Innovators with AI

A clear metric like the inventionINDEX, combined with the financial support of the grant program, can create a more transparent and encouraging environment for young entrepreneurs. This is particularly true in an era where artificial intelligence is democratizing access to the patent system. AI-powered platforms now offer tools for every stage of the patenting process, from invention harvesting to drafting applications, making the process more efficient and affordable for startups.[27, 28]

Sections 7 & 8: Projected Impacts and Implementation Risks

Projected Impacts on the U.S. Innovation Ecosystem

The implementation of the CEP would have far-reaching, positive impacts by directly addressing systemic dysfunctions. Key benefits include:

• Stronger, More Reliable Patents: A collaborative prior art review reduces validity defects exploited in litigation.[29]
• Reduced Backlog: Compact prosecution would reduce the number of office actions and RCEs, freeing up examiner resources and shortening pendency times.[5]
• Disruption of NPE Business Model: Higher-quality patents are less attractive targets for litigation, reducing value-extractive lawsuits and allowing capital to be redeployed to R&D.

Implementation Risks and Mitigation Strategies

Proactively identifying and mitigating risks is crucial for the success of any pilot program. Key challenges include:

• Cultural Change and Training: Examiners trained in an adversarial framework would require new skills in negotiation and facilitation.[19] Mitigation involves a robust training program developed with experts in alternative dispute resolution.
• Regulatory Capture or Bias: Clear, objective standards and oversight would be needed to ensure the process does not become overly lenient.
• Access and Fees: Higher fees for the CEP could exclude small inventors. Mitigation could include a tiered fee structure or subsidies for micro-entities.
• Legal Complexities: Confidentiality and estoppel provisions require careful navigation. A phased pilot approach would allow for testing and refinement based on real-world data.

Section 9: Conclusion and Actionable Recommendations

The U.S. patent system is at a critical juncture. A fundamental paradigm shift is required—one that moves the system from a posture of conflict to one of collaboration. The Collaborative Examination Pathway offers a comprehensive framework for such a shift. To move this proposal from concept to reality, the following recommendations are offered:

1. Authorize a CEP Pilot Program: The Director of the USPTO should authorize a limited-scale CEP pilot program in specific technology centers known for complex examination, such as software and biotechnology.
2. Establish a Multi-Stakeholder Advisory Committee: The USPTO should convene an advisory committee with representatives from industry, the patent bar, academia, and the venture capital community to provide input on the pilot program.
3. Develop a Robust Data Collection and Evaluation Framework: The pilot program must be designed with clear key performance indicators to measure its effectiveness against the traditional examination process.
4. Invest in Examiner Training and Resources: A dedicated budget should be allocated for a comprehensive training curriculum for examiners participating in the pilot, focusing on collaborative negotiation and facilitation skills.