There’s one revision tucked away in S.23 (the Patent Reform Act of 2011) that almost no one is talking about: changes to the procedure for filing without the Inventor’s oath and declaration. In the US, unlike much of the world, patents are applied for by inventors, not corporations. Sure, the rights to a patent application, or an issued patent, might be assigned to a company, but the patent office recognizes the inventor as the patent applicant. This may seem like a relative formality, but it is actually a very significant recognition about the realities of invention. Inventions are conceived of and reduced to practice by human beings, not fictitious corporations.
Acceptance of a patent application requires the receipt of an oath, signed by the inventor, swearing that “he believes himself to be the original and first inventor of the process, machine, manufacture, or composition of matter, or improvement thereof, for which he solicits a patent. ” (35 U.S.C. 115). Occasionally, an employer possess the rights to an invention through a legitimate agreement with the inventor, and in those cases, the patent office will not let incapacity or recalcitrance stand in the way:
Whenever an inventor refuses to execute an application for patent, or cannot be found or reached after diligent effort, a person to whom the inventor has assigned or agreed in writing to assign the invention or who otherwise shows sufficient proprietary interest in the matter justifying such action, may make application for patent on behalf of and as agent for the inventor on proof of the pertinent facts and a showing that such action is necessary to preserve the rights of the parties or to prevent irreparable damage; and the Director may grant a patent to such inventor upon such notice to him as the Director deems sufficient, and on compliance with such regulations as he prescribes.
35 USC 118
To patent attorneys already indoctrinated by corporate personhood, the various requirements of this process are little more than an annoyance standing in the way of his real client’s ability to claim an invention. The proposed amendment in S.23 softens this procedure considerably:
A person to whom the inventor has assigned or is under an obligation to assign the invention may make an application for patent. A person who otherwise shows sufficient proprietary interest in the matter may make an application for patent on behalf of and as agent for the inventor on proof of the pertinent facts and a showing that such action is appropriate to preserve the rights of the parties. If the Director grants a patent on an application filed under this section by a person other than the inventor, the patent shall be granted to the real party in interest and upon such notice to the inventor as the Director considers to be sufficient.
Proposed revision to section 118.
Gone is the requirement that the inventor is recalcitrant, or MIA, and instead attorneys can just bypass legal requirements to serve their client’s interests simply because it’s more convenient.
Despite all the difficulty, red tape and unwarranted ridicule that comes with acquiring and licensing patented inventions, the fact that actual inventors might presumptively own the fruits of their own mental labor might be one of the few things that keeps hope alive, encouraging inventors to continue to invent, even on their own time, away from the confines of their cubicles. The new procedure threatens to reduce recognition for one’s own efforts to a mere formality.
How’s that going to encourage innovation?