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In patent, institutional design matters, and goals matter to institutional design. This article concerns the institutional design of mechanisms that can be used by third parties to challenge the validity of proposed or granted patents in the patent office—oppositions, revocations and similar processes. This article traces the various goals of these mechanisms, and how those goals have changed over time. It argues that recent economic and legal literature, which has influenced proposals for reforming these systems, is altogether too neat and tidy, treating public interest participants as interfering busybodies. It is better to acknowledge and embrace groups like Peer to Patent and the Public Patent Foundation, and think about how, in the long term, we can adjust aspects of the patent system to incorporate public input without too much sacrifice to politics and uncertainty.
