Different Kinds of Patent Reform

There’s more than one way to “reform” patent law. I use the scare quotes because one person’s needed reform to enable innovation is another person’s blow that crushes innovation. I’ll drop the quotes and just stipulate that any change to the substance or procedure of patent law can be called reform.

One way to reform patent law is to pass legislation. Taking this approach, the Innovation Act of 2015 was recently introduced in Congress. Different participants in the patent system may have different opinions on the many proposals of the Innovation Act, but we all know about it. As far as patent-related news goes, the introduction of bipartisan legislation to amend the Patent Act is a big deal.

Another way to reform patent law is through the courts. Some cases receive extraordinary levels of reporting—the Alice decision from the US Supreme Court being a somewhat recent example—and other cases receive relatively little attention, but all of the court decisions impacting how patent law operates are publicly available, whether you care enough about patent law to read them or not.

Yet another option for reforming patent law reform is for the Patent Office to issue guidelines and rule changes. This approach probably will only be noticed by those who care about patent law rather intensely, but at least those who do can comment on the proposals and ultimately proceed in accordance with the new standard.

While the merits of any particular reform accomplished in any of the above fashions may be debated, at least those merits are debatable—a point which brings us to a final way to reform patent law: a secret program. The problem with a secret program (even when the very existence of the program ceases to be secret) is that, no matter how good (or bad) the program is on its merits, the lack of information about how the program operates leaves all of us wondering where to go next.

2015 appears destined to be another year of patent reform. Hopefully it will be the kind of reform we all can participate in, shape, or at least adapt to. That’s the best kind of patent reform.