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  • Reviving the Gatekeeping Function: Optimizing the Exclusion Potential of Subject Matter Eligibility

    Today, many patents that fail the constitutional mandate “[t]o promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation. Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting licensing fees from competitors