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america invents act, IP, Patent

New Patent Reform Counterattack – Don’t Be Like The French

Generalizing (perhaps a bit), but as Americans, I have learned that we don’t like the French.  We found out in the last decade that our lawmakers don’t like the French a whole lot either, so if you oppose the Patent Reform Act of 2011, send your congressman (or woman) a case of freedom fries and tell them to just say ‘non’ to S.23.

Menu from a House cafeteria featuring "Fr...

Image via Wikipedia

Caroline Goussé warns us that the current reform bill “adopts a first-to-file approach much like the ongoing French legislation” adding:

French law does not really care about the industrial inventor. As such, the inventor does not own any exclusive right on the invention. Exclusive rights are contingent to the registration, and owners are only those who file the invention.

via American Inventors Beware: You Might End Up Just Like The French.

Goussé makes a valid point, as the switch to first-to-file is more than a mere formality.  This change (along with others, like amendments allowing companies to easily bypass inventors when filing patents) signals a fundamental shift in the way inventors are treated in the overall process. Drawing on academic work, the American philosophy of inventorship is explained:

an invention can only be invented once; thus only one inventor can actually exist. … The right to exclude thereby belongs to the first mind to ever conceive the invention.

Under French law, meanwhile, inventors “are limited to a moral right to paternity (art. L.611-9) and to some industrial rewards.” Because all inventions come from individuals, not companies, the French policy has effectively established the going rate for transferring patent rights from inventors to businesses. In the American system, inventors decide the terms upon which their inventions are sold (including selling inventions they’ve not yet conceived).

But if patent reform passes, how much longer will that be the case?

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