For over 170 years, U.S. patent law has required that, prior to the assertion of any property rights in an invention, the inventor obtain a favorable opinion from a neutral expert who has examined the claim to invention and opined that it is valid. The expert opinion is not conclusive or unassailable. It may be held erroneous during subsequent litigation or administrative adjudication. Rather, the expert opinion is akin to an audit opinion from an independent accounting firm, which is required by law as a prerequisite for engaging in certain legal activities (e.g., for issuing public stock or maintaining a listing on a stock exchange). Historically, however, there has been one major difference between audits of financial statements and examinations of claims to invention: Patent examination in this country has traditionally been monopolized by the government-run patent office. Audit opinions, by contrast, are produced by a private, albeit regulated, industry of competing accounting firms.

In this Article, we argue that the monopolization of patent examination has almost certainly negatively affected the U.S. patent system, contributing to decreased productivity, low-quality output, and reduced incentives to adopt innovations for examination of patent applications. Fortunately, the patenting monopoly is now being eroded. We argue that this change should be welcomed and accelerated.

Movement toward ending the patenting monopoly can already be seen in such developments as increased international cooperation and competition in the patent-examining function, experiments in public "peer" patent review, proposals to require that inventors evaluate their own applications for patents, and calls for establishing a more heterogeneous system of quality gradations in patent examination. This ongoing change is global in nature; at least one country, Israel, already relies on examinations performed by any one of twelve patent offices.