Guaranteed Patent Validity vs No Permanent Injunctions

Fascinating and bold proposal by Professor Paul Janicke of the University of Houston Law Center to fix the U.S. patent system:

(1) Continue to allow prosecution of as many claims as desired, but after allowance require the applicant to choose no more than three for issuance. During the first three years from grant, attacks on these claims can be made in the PTO or the courts, to the same extent as now. After three years from the issue date, validity of the claims becomes incontestable.

(2)  In exchange for (1), the remedy of permanent injunction disappears, except in ANDA cases. It will be replaced by a revised financial remedy: equitable sharing in the infringer’s revenues from the infringing activity, as set by the judge.

He anticipates the objections but argues radical change is needed. And it is certainly appealing to think about a fundamental rebalancing. The patent system is broken.