September 28, 2012
In case you’re like me in that you live under a rock and haven’t heard about it, the America Invents Act was passed last fall and goes into effect in March. It’s meant to streamline and reform the patent system.
The biggest change will be moving our process of granting patents away from a “first to invent” system, in which patents are generally granted to the party who can prove it came up with an idea first, to a “first to file system,” in which the patent goes to the party who is the first to file for a patent.
Given that “first to invent” has been a defining characteristic of our patent regime, this is going to be a pretty seismic shift. The goal is to make the patent application process faster, cheaper and more efficient. It will also bring our patent system more in line with Japan and most European countries, evidently, which use similar “first to file” systems.
Now, reading the actual, full texts of laws is something I don’t miss about law school, so I am basing my impressions about the America Invents Act on media coverage. And from a bird’s eye view, it sounds like not everyone is happy. But are they unhappy for a good reason?
One inventor recently filed a lawsuit over the America Invents Act, claiming that it favors corporations over “the little guy” because big companies have the resources to file for patents early, often and frequently. To me, he has something of a point, but when other people describe your lawsuit as “quixotic,” I am guessing the general consensus is that it probably isn’t going to go anywhere.
Some people have pooh-poohed that argument because they question how much “garage inventors” really contribute to the intellectual property landscape anymore. Then again, in the great echo chamber that is press coverage of the 2012 presidential election, one of the most frequently repeated statements is that small businesses are the engines of our economy and are responsible for most job growth.
Even keeping those things in mind, the idea of moving our patent system to a “first to file” format still makes a good amount of sense to me. Given the elusive and hard-to-prove nature of ideas, the entire concept of trying to prove who was the first to come up with something sounds endlessly labor intensive, and doesn’t the resulting litigation over that question favor big companies anyway, since they could theoretically win by outspending a mom-and-pop operation if they had to?
I’m always reluctant to add another stone to the burden of being a small business owner, and I find the idea of a backyard genius with a million-dollar idea as appealingly All-American as any patriotic individual. It’s just that I like practicality, too.