First, recent decisions make mistakes by the PTO harder to correct. In Dickinson v. Zurko , the Supreme Court held that factual determinations of the PTO can be reversed on direct review only when the findings are arbitrary or capricious . Further, a series of appellate court opinions holds that issued patents can now be challenged only when there is clear and convincing evidence it is much more probable than not that the patent is invalid. The problem of invalid business method patents cannot be overcome by post-issuance court challenge because the effects of these patents endure beyond invalidation.
Patents insulate inefficient businesses during industry shake outs.
Once a customer is stuck, invalidation no longer matters because the customer will not switch. The PTO needs the resources to render correct decisions. This includes not only funding but also examiners trained in computer science and business, and a business library. A mechanism allowing the PTO to revisit initial decisions should be put in place. This could take the form of an opposition procedure or expanded reexamination.