Minority Report: Real Patent Reform, Maybe Later — The America Invents Act and the Quasi-Recodification Solution

Abstract:     
This is a minority report. I do not agree that there is any comprehensive reform in the new act. I distinguish between a change in the law that adds new provisions, and a reform that either clarifies and improves existing law or corrects defects in existing law. The new law may indeed comprise substantial changes, but it does not constitute reform. I assert one claim — the new Patent reform act is disappointing, but not fatal to real reform — in three parts. First, the Leahy-Smith America Invents Act (AIA) has transformed U.S. Patent law from the traditional first-to-invent system to something else. What we have wrought is not a first-to-file system as in other nations, but rather a non-standard “first to declare” system that will open up what I refer to as a new “petty priority contest” with petty interference proceedings. Second, the AIA leaves so much undone as to discourage anyone who hopes for real patent law reform. It is still fair to say that bad patents are not an abuse of the system; instead they are the system. But, third, there is a quasi-recodification solution that has worked in the past, in the field of federal securities law reform which was at least equally difficult, and that provides a realistic and practical roadmap for real reform of the patent laws. The Supreme Court’s insistence upon applying all of the equitable factors before awarding injunctive relief can be the key to implementing reform. I conclude with a preview of real reform.

Notes: (1) The “quasi-restatement” of patent law in Appendix B is qualified in its entirety by the rest of the article (and the semi-ironic description of the AIA in Appendix A is likewise qualified). (2) The corresponding hardcopy is in final galleys, and there may be some variations between this version and the final hardcopy.

Number of Pages in PDF File: 122

Keywords: Patents, AIA, America Invents Act, Patent Reform, Restatement, Codification, First to Invent, First to File, First to Declare

JEL Classification: O31, O34, K20, K22

Accepted Paper Series