Mr. Ebert is correct on several points here - the problem of SSRN downloads is one that vexes the free flow of scholarship, but it is often the case that once a piece is published, and restricted, a working paper can often be found in some depository, somewhere, by using Google Scholar. Ebert also points correctly to what is included and not included in our references. I intend to read the citations to which he points (thank you), and if relevant they will find their way into the final published version. While I cannot speak for Harhoff, I can say that I do not consider myself an "advocate" for an opposition system. That said, my study of the topic has convinced me that, on balance, a relatively inexpensive system would do more good than harm. Are there individuals and groups that would be worse off - certainly. But, as said, my conclusion is based on the wider social welfare. We have a unitary system, and for better or worse the moving of any policy lever will have differential effects. But will the innovation system as a whole be better off? My study has led me to believe that it could be - but note the caveats in the paper, and the circumstances under which it would be undesirable and, in balance, more harmful. I would certainly not be an advocate of that outcome.
Joe Hosteny was writing about problems with oppositions before LBE was, and Mr. Hosteny was using some descriptive language, including the image of running the gauntlet. Most of these articles are not in the "law review" literature. LBE simply does not like the added expense brought to opposition procedure from the presence of depositions, which LBE does not believe to be cost-effective at the margins. LBE does believe the protest procedure needs to be beefed up, by allowing a longer time window and by allowing the protester to file at least a claim chart. which would make analysis by a patent examiner easier and quicker.
The balance between 35 USC 122(c) and 37 CFR 1.99