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I know next to nothing about the patent system in the US, so forgive me if this is a ridiculous question. What would stop one from starting their own private patent office. The USPTO solely examines and then documents patents to save for a later date if someone infringes on your intellectual property, right? So if a private company could do the same thing and be accepted by a court as being official, is there any law restricting this? And would a procedure like this hold up in court?

  • "documents patents to save for a later date" That's not true. They don't "document" the patents, they, quite literally, grant them. The law allows them to do so, but doesn't allow you to do it. A document can be, at best, a patent application, unless a patent is granted by USPTO. The application is, by itself, fairly useless outside of the patent system. The law works the other way: it doesn't restrict it, but it gives no one power to regulate it other than USPTO. IOW, you can't make up your own laws (unless you're a legislator). – Kuba Ober Mar 31 '16 at 20:10
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To be meaningful, such an office would have to be established by congress. As it stands now, congress has established the existing Patent and Trademark Office as a part of the US Department of Commerce. If they chose to, I suppose they could delegate that responsibility by specifying processes that had to be followed, and then (for example) licensing private agencies to carry out those processes.

That would still be in accordance with the constitution, which simply gives congress the right:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Realistically, I can't quite imagine that happening. Unlike most parts of the government, the PTO is actually profitable. For example, its current projection is to receive about $3,343 million in fees this year, and spend about $3,246 million, for a profit close to $100 million. Granted, as government budgets go that's not a whole lot of money, but it's still positive cash flow.

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The USPTO publishes applications and granted patents.

A private company publishing such information wouldn't be providing any protection for themselves but would merely be publishing prior art against other companies (who search for such material and make sure they work around such available material - otherwise the Examiner from the USPTO would not give them a patent.)

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Different forms of intellectual property have different legal protections. In very simplified language, they break down like so:

  • Copyright: automatic upon creation, no registration required to be able to claim infringement
  • Trademark: arises out of regular usage, but a registered trademark affords additional rights
  • Patent: only enforceable after being granted by a recognized body (a patent office)

In other words the very definition of a patent requires it be issued by the USPTO (or an equivalent legally recognized body in another jurisdiction). While no one would stop you from operating a private "patent office", a court of law would not consider the "patents" issued by that office in infringement proceedings, rendering such a "patent" useless.

The USPTO solely examines and then documents patents to save for a later date if someone infringes on your intellectual property, right?

No, the USPTO does more than simply examine and document. They have the authority to grant or reject patent applications, and therefore decide what patents are issued. It isn't enough to simply apply for a patent; you must also be granted the patent.

While it doesn't make sense for a private entity to grant patents, it does make sense for inventions to be registered elsewhere than the USPTO. There are a number of services (including this site) which maintain data about inventions, patents, applications, and prior art in order to ensure the USPTO does not grant patents erroneously.

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