Patent Reform in the United States: Lessons Learned


In previous work with Mark Lemley I have discussed the critical role played by the courts in fitting patent law to the ongoing needs of innovation. Careful scrutiny of the recently enacted America Invents Act (AIA), which legislatively reforms American patent law, underscores the need for robust judicial involvement in fostering a healthy patent system. In many instances during the development of the AIA, an initially perceived need for legislative reform was superseded by ameliorative judicial action. In other instances, Congress addressed issues of patent doctrine and procedure that can and should only be addressed by legislative action. But in many respects, the AIA introduces into the statute new lacunae that the courts will now be called upon to resolve. Ironically, legislative reform of patent law has set the stage for decades of fresh judicial interpretation and gap-filling to rehabilitate a statute newly riddled with uncertainty.

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