Legislative reforms take forever – statutory changes take decades

Legislative patent reform can be a costly proposition. Aside from the problem of special interest rent-seeking, the switching costs of adapting common practice to new legislation can be extraordinarily high. The America Invents Act offers a prime example of such switching costs. Although businesses will likely experience somewhat lowered costs in managing international patent filings, the legislation disrupts long settled law, creates new opportunities for gamesmanship, foments new litigation, and introduces new uncertainty into business decisionmaking. Perhaps ironically, this means that the true business of patent reform is left to the U.S. Patent Office and the courts, where it may have been better to have placed it in the first instance. The many ambiguities and inconsistencies will ultimately be given meaning by judicial interpretation. It will unquestionably take decades of litigation before we know what many of these statutory changes introduced into patent law mean for innovation. The political claim that the AIA will create 200,000 new jobs may well prove to be true, but they will be jobs for patent lawyers.