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america invents act, IP, Patent

Patent Reform Vote Today! Everything You Need To Know

UPDATED: MORE LINKS (BELOW)

The Senate will reconvene today at 2:00 PM ET, and the Patent Reform Act of 2011 is supposedly on the schedule. It’s no real secret that I’m generally opposed to the bill.  The various provisions of the bill are largely either pointless at best (damages reform that merely codifies existing law) and harmful at worst (additional complex post-grant procedures that impose costly burdens on patent owners).  Meanwhile, changes to the treatment of inventors (such as ‘first to file‘ and changes to the inventor’s oath provisions) at a minimum send the wrong message to innovators, and potentially threaten to harm innovation and progress. Other sections of the bill (e.g. tax strategies) are just plain stupid.

While I strongly believe that these “reforms’ represent bad policy, I can accept a reasonable argument to the contrary (although I have yet to hear one).  But passage of the bill in its current form would be an absolute travesty given the lies and deception the bill’s supporters have deployed to try and secure support.  For example, Dave Kappos tried to tell a group of Senate aides that S.23 had “broad support” of inventors and small businesses.  Fortunately, a large collection of small business and inventor’s interests discovered this insidious deception, and responded by telling Senator Harry Reid that:

this sector of the innovation community does NOT support S. 23, the Patent Reform Act, in its current form …

Continuing on, the letter to Sen. Reid advised:

The bill favors multinational and foreign firms over start-up firms seeking an initial foothold in U.S. domestic markets, and favors market incumbents over new entrants with disruptive new technologies.

The IEEE has also jumped on board, slamming the Patent Reform Act in a letter to Sen Leahy.

[W]e remain concerned that some provisions of S.23, the Patent Reform Act of 2011, could directly harm the American businesses which create American jobs, and cause additional backlog in the already overwhelmed U.S. Patent Office (PTO). … Rather than pursuing questionable reforms in S.23, we urge you to turn instead to a bill that would command immediate and universal support—a bill that adequately funds the PTO and allows the agency to retain the fees that it collects.

After nearly 6 years of failures, the patent reform lobby is likely desperate to pass anything which explains why they would blatantly misrepresent the position of an extremely important portion of the patent community.  It also explains why they would attempt to flood the news-wires with complete drivel, such as this article claiming that S.23 will benefit small business:

Specifically, Senate Bill 23, The Patent Reform Act of 2011, will lower fees for micro-entities, shorten times for patent reviews by creating a more predictable system and move the U.S. toward a First-Inventor-to-File system which protects inventors by harmonizing U.S. law with our competitors abroad. The bill also provides the agency with resources to reduce the current patent backlog of 700,000 applications.

Via Why inventors, and America, urgently need patent reform

First, it’s completely laughable and insulting to think that micro-entity fees are going to have any significant effect. Small entities already get a 50% reduction in fees, and the largest financial barrier to obtaining meaningful patent protection stems from the lawyers needed to obtain and enforce patents. Second, there’s nothing in the bill addressing pendency.  The funding provisions may have this effect, but the bill will cause the PTO to devote resources to the new post-grant review procedures, and potentially increase the Examiner workload by allowing anonymous third parties to submit prior art for consideration.  Finally, suggesting that a move to ‘first-to-file’ protects inventors is downright insulting. So far, the only justification I have seen for why we should do this is harmonization.  Sorry, but if “everyone else is doing it” was insufficient justification for my mother to let me get an earring in the 10th Grade, then it shouldn’t suffice here when important Constitutional rights are on the line.

If you have any interest or stake in this, pay attention today when S.23 goes to the Senate floor, as there are rumors swirling about a possible amendment that would remove the ‘first-to-file’ portion of the bill:

Now lobbyists familiar with discussions about the legislation say Senate Majority Leader Harry Reid, D-Nev., may support or even cosponsor a likely amendment by Sen. Diane Feinstein, D-Calif., which would remove a provision that would grant patents on a “first to file” rather than “first to invent” basis.

Via Critics Taking Aim At Senate Patent Bill Through Amendments

Meanwhile, the AIPLA (largely a collection of patent lawyers) sent around an alert telling its members to “OPPOSE any effort to remove provisions adopting a first-inventor-to-file system.”

Incidentally, a ‘first-to-file’ system encourages more filings, and encourages them to be undertaken rapidly which would dramatically increase the patent filing workload, particularly for large, corporate clients.  But I’m sure that has nothing to do with the AIPLA’s position.  Instead, I’m sure they’re in favor of it because of the far greater reason that everyone else is doing it.

There is one intellectually honest business owner out there who recognizes that, while ‘first-to-file’ might benefit his business, it result in a net loss on society:

A “first to file” system may prove beneficial to established corporations like my own, which are financially and professionally better situated to quickly file patent applications and thereby beat smaller, less sophisticated inventors and startups. But is that good for the U.S. economy? Without patents, most entrepreneurs cannot attract the venture funding they need to scale up R&D, hire people and commercialize their new products and medical advances for society.

Via ‘First to file’ is threat to job creation

Thoroughly intoxicated on the pro-reform lobby’s Kool-Aid is the Washington Post, which sets up the ‘first-to-file’ as a cure to the inventor/boogeyman who comes to steal your inventions:

Patents in the United States are given to those “first to invent.” This approach is out of step with the rest of the world’s “first to file” approach and is highly inefficient. It invites people to come out of the woodwork years after a product has been on the market to claim credit and demand royalties.

Via the editorial:Why the patent process should be overhauled

The editorial goes on to claim:

The secretive, lengthy U.S. process also too often allows patents for products that are neither novel nor innovative. It leaves manufacturers vulnerable to infringement lawsuits and damage awards long after their products have gone to market.

What WaPo has actually done here is combine two distinct arguments into a single scare story, claiming ‘first-to-file’ is the solution.  True, the US system allows the first inventor an opportunity to obtain a rightful claim to a patent, even though someone else has beat him in the race to the patent office.  As previously pointed out, an invention can only be invented once, and while we reward disclosure, we want the reward to go to the first to discover.  However, the scare story about infringement demands “after a product has been on the market” speaks to a different problem, which is the effect of so-called submarine patents.  However, this is primarily a function of delay and backlog caused by the patent office not the inventors.  Most inventors want their patents to issue as quickly as possible.

Patent attorney Gene Quinn is apparently unconcerned about a ‘first-to-file’ system, asking a reader of his blog:

Are you familiar with the fact that we already have a de facto first to file system? Are you intimately familiar with the onerous evidentiary burdens placed on the second to file? Are you familiar with the fact that to prevail as the second to file the average attorneys fees are $600,000? Are you familiar with the fact that since October 1, 2004 there have been nearly 3 million patent applications filed and only 1 independent inventor has successfully demonstrated they were the first to invent and win the patent when they were the second to file?

Again, the fact that the first to invent often is the first to file does not counsel in favor of rewarding only the first to file! Any patent attorney worth his salt will tell you, if you are to file, that you should do it sooner, rather than later. That doesn’t change the fact that true inventors are entitled to an opportunity to plead their case if they find themselves a step too late to the PTO.

One thing I would hope all sides of the patent debate could agree on is that such important and fundamental changes to a patent system that has functioned throughout the entire history of the United States should be undertaken carefully, debated honestly and consider all reasonable viewpoints.  The current process has not done so, and needs to be halted so that a real and serious discussion about meaningful reforms can take place.

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