Alan Devlin


2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, in September, Congress passed comprehensive patent-reform legislation for the first time in almost sixty years. The Leahy-Smith America Invents Act (the "AIA") changed the patent landscape in a number of significant ways, introducing a first-to-file system, post-grant opposition proceedings, certain prior-user rights, and other material changes.[...] As between the two developments, the AIA is likely to overshadow the FTC Report. Yet, due in part to the fact that the AIA does little to address the problem of inadequate patent notice, the Report is itself of considerable importance. This Essay explores the backdrop, substantive provisions, and likely impact of the Report, concluding that the FTC's recommendations, though generally well founded, are unlikely in themselves to resolve the most worrying features of the patent crisis. This Essay argues that the FTC proposals are excessively restrained with respect to controversial tenets of proposed reform, though they are appropriately ambitious in other quarters.[...] The Report represents an important development in U.S. innovation policy. This Essay explores the material features of the patent crisis and explains the crucial roles that patent notice and remedies play in fueling the crisis. It examines the Report's probable efficacy, laudable provisions, and material shortcomings. The Essay concludes that, although the Report's recommendations are generally well founded, the Report is unlikely to have a major impact on the patent system's most significant problems. It thus appears likely that more significant reforms will be necessary. This Essay proceeds as follows. Part I briefly recounts the controversial features of the patent system that lead some commentators to believe that the patent system is in crisis. Part II explores the interrelated functions of notice and remedies by comparing the laws of tangible and intellectual property. Drawing on that discussion, Part III addresses the Report's most notable recommendations and singles out a subset of them for particular praise. Part IV details the Report's limitations, opining that its decision not to make formal recommendations with respect to the most contested, but arguably most important, aspects of the patent system means that the Report is unlikely to have more than a modest impact on the crisis. Part IV also discusses technical deficiencies that underlie the FTC's analysis. A brief conclusion follows.