U.S. Senate Passes Patent Reform Bill--Good News For All?

            This week, the U.S. Senate passed the 2011 Patent Reform Bill (now dubbed the “America Invents Act”) by a margin of 95-5. This bill has been called by many a bipartisan measure, and many folks are welcoming the notion of the “left” and the “right” agreeing on something these days. Perhaps the Senate was respecting Rodney King’s plea of “Can’t we all just get along?”, as this week also marked the 20th anniversary of his notorious beating by L.A. police which led to riots in the streets there. This issue certainly doesn’t rise to the importance level of human rights issues, but it is something entrepreneurs should pay very close attention to. It seems virtually everyone is on board the patent reform train which is said to be aimed at progress for our nation. But what are we progressing toward?
            Some of you may be wondering what the Bill is designed to do. First and foremost, the Bill is designed to effectively change our current patent system from a “first to invent” system to a “first to file” system. There is little question that the U.S. patent system has led the world for many decades because of the protections afforded inventors and businesses at all levels while, at the same time, casting a judicial balance for those that would otherwise abuse the system. No system is fool-proof, but there is little question that patent rights and, more broadly, intellectual property rights are a key asset to our nation’s economy. Nonetheless, for the past couple of decades or so, our patent system has become more and more aligned with the various patent systems of other countries under the monikers of globalization and unification, etcetera. Again, progress for the sake of progress is not necessarily a good thing if we’re headed in the wrong direction.
            There has been much talk about how the Bill will help inventors and small businesses. I find that hard to believe. Who is in a better position to have quick access to patent attorneys, lobbyists, and capital—individual inventors and small businesses or large corporations, many of which already have patent attorneys in house? In my opinion, inventors not overly savvy will see their inventions patented by larger, faster, and more agile companies. The larger companies will actually receive help from the highly suspect invention marketing outfits. Invention marketing companies like, for example, Invent Tech, Invention Submission Corporation, InventHelp, and Davison, will wreak even greater devastation on unwary inventors because such companies will lure unsuspecting inventors into their doors and make proprietary information publicly available before a patent application is filed for such inventors. This is the classic “cart before the horse” scenario o steroids. Larger companies can then easily and efficiently file patent applications based on those publicly disclosed concepts that have been revealed but haven’t been constructively reduced to practice in a patent application. In the end, the unwary inventor is left with a multi-thousand dollar marketing bill and a cloud of dust. After all, we’re progressing toward a first to file system, and that’s good, right? Query as to how many U.S. senators actually understand the long-term implications of the Bill they voted for this week.
            There is good news, however, despite the fact that I haven’t yet saved a load of money by switching to Gieco. The good news is that the Bill does include ways in which pending patent applications can be challenged by third parties during patent prosecution, theoretically increasing the quality of the prosecution process. Also, the Bill is not law yet, so there may still be a few tweaks to further improve the bill. Additionally, the U.S. Senate was wise enough to remove some of the more controversial measures that were in the original version of the Bill. Overall, however, it looks like we’re headed to a first to file system very soon. So, if you’re an entrepreneur or a small company that relies on or will rely on some degree of patent protection in the future, I suggest you get cozy with a patent attorney now so that when the time comes, you’re ready to fire away and get your application filed as soon as possible.

Roby Robinson
Registered Patent Attorney
Patentman (Twitter)

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