This Article has three parts. In Part One, I describe what Congress claims to have done, then what the Act actually has done, and therefore what is the most that can be hoped to come from it. In considering what Congress has done, I briefly outline the theoretical basis of the new hybrid system, neither first-to-invent nor first-to-file, but rather a "first to declare" system with a one-year grace period that is both a shield and a sword to the declarant. More importantly, Congress has indicated it believes the new system is compatible with the Constitutional grant, and I suggest that Congress' new perspective may lead to a new understanding of what the Constitution minimally requires, thereby opening the way for a more flexible, efficient, and streamlined patent regime despite the ALA.
In Part Two, I describe the nature of the underlying problems in patent law. What, exactly, makes a bad patent worse than any other patent? If there were a serious problem with bad patents prior to the AIA, there still is. The reason for asking the question is stunningly simple: if so many routinely issued patents are "bad," then it must be said that bad patents are not an abuse of the current system, they are the system. In this section, I describe what the AIA has failed to do, propose a working definition of "bad" patents, and provide some hypotheticals aimed at the non-specialist. I claim the problem of bad patents is endemic to the existing system, is not nearly cured by or even defined in the AIA, and yet is possible of cure according to a new way of framing that might be embedded in the AIA. How, then, ever to attain real and fundamental patent reform post-AIA?
Folsom, Thomas C.
"Minority Report: Real Patent Reform, Maybe Later - the America Invents Act and the Quasi-Recodification Solution,"
Akron Intellectual Property Journal: Vol. 6
, Article 2.
Available at: https://ideaexchange.uakron.edu/akronintellectualproperty/vol6/iss2/2