On
September 8, 2011, the Obama administration passed an act to reform the current
system of obtaining patents in the United States. The America Invents Act is discussed in the
article, “Patent Medicine,” on Nature.com; however, the author of the article
seems to be misled on numerous accounts.
According to the article, the new reform of patents will “simplify life
for inventors,” “eliminate the lengthy administrative procedures that are often
required," “reduce costly patent litigation by ensuring, through a review
procedure after the patent is granted, that all patents describe working
inventions,” as well as help fund the Patent & Trademark Office (PTO) (Patent
Medicine). All these statements made in
the article are inaccurate since the new legislation will worsen the patent
system already in place. Furthermore, due
to the current circumstances of The America Invents Act, life for inventors
will be more complicated, the bill be a burden for small companies, they may risk
losing their patent rights, as well as funding for the PTO will be no better
than it already is.
So exactly what is a patent?
According to the United States Patent & Trademark Office, “a patent
is a property right granted by the Government of the United States of America
to an inventor ‘to exclude others from making, using, offering for sale, or
selling the invention throughout the United States or importing the invention into the
United States’ for a limited time in exchange for public disclosure of the
invention when the patent is granted” (USPTO).
When a patent is granted to an individual or group, they gain rights to
their invention. The primary reason for
granting a patent is so that another individual does not steal one’s “process, machine, article of manufacture, [or]
composition of matter” (USPTO). By
issuing patents, scientists, inventors, or even individuals are able to keep
the rights to their inventions so that others are not able to steal them.
In the
article, “Patent Medicine,” the author seems to provide a positive outlook on
the changes to America’s current patent system.
The author states that the America Invents Act is “good news for researchers
and their institutions” (Patent Medicine).
The old patent system was a first-to-invent system in which the first to
invent would obtain the patent; however, due to the new legislation, the United
States will now be moved “to a first-to-file system, in which patents are
granted to those who get their applications to the patent office first” (Patent
Medicine). As mentioned earlier, the
author believes that the new system will substantially make inventors’ lives
easier, cut back the procedures to “determine who has priority on inventions,”
and reduce the costs that come with patent litigation (Patent Medicine). The author also states that the “US Patent
and Trademark Office will, at Congress’s discretion, be able to keep the filing
fees that it raises each year, rather than see them diverted to other parts of
the government,” (Patent Medicine). Putting
all of this together deems that the author is obviously for the new
legislation; however, if one simply puts a little thought into the future of
our patent system, it is easy to see that this transition will not occur as easily
as the author thinks.
Primarily,
instead of simplifying the life of inventors, it will only make them more
complicated. Patent attorney, David
Forman of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington DC
states that “for some five to six years, the patent law will be schizophrenic,
with new applications judged under new rules after March 2013, but older
pending applications judged under the old law” (Fox). This confusion arises due to the law going
into place March 16, 2013. This is a
whole 18 months after the proposed legislation and due to this gap,
complications for inventors will arise due to the confusion in the new patent
system. Furthermore, Chief Judge Paul
Michel of the United States Court of Appeals for the Federal Circuit states
that “in a system already plagued by delays in granting patents, they threaten
to delay courts from enforcing patents once finally granted,” (Michel). The United States patent system is already
currently slow on granting patents and now, it will be even slower. According to Judge Michel, the “total elapsed
time [to grant a patent] usually will be not one, but almost three years
(Michel). This will happen because “the
one-year deadline does not count the year, on average, that the inevitable
appeal will take,” “the deadline is extendable to 18 months and, in any event,
not enforceable,” and “the one year does not count the petition stage before
the proceedings begins” (Michel). Not
only will the time for patents to be granted increase the complexity in inventors’
lives, but it will also hurt the process of sharing scientific ideas and
discoveries. Due to the new
first-to-file system, Carl Gulbrandsen, managing director of the Wisconsin
Alumni Research Foundation in Madison, “fears that some provisions could end up
dampening scientific collaboration and increasing secrecy” (Malakoff). This arises because an idea can be filed way
before it is invented, thus creating a strong burden in the scientific community. The author of “Patent Medicine” obviously did
not consider these possible problems.
Instead of increasing simplicity for inventors, it is easy to see that
the complexity of problems will definitely occur.
Secondly,
the America Invents Act will be a huge burden and increase the complications
for small businesses. Carl Gulbrandsen
states that the changes “are going to increase the costs of obtaining,
maintaining, and enforcing patents for universities and individual inventors,”
(Malakoff). This in turn, will favor big
companies more and hurt smaller organizations due to the larger costs. “Start-up companies will stall, or even die,”
and due to the fact “that such firms are responsible for almost all new job
creation and economic growth,” the new patent system “could have severe
negative effects upon the whole society,” (Michel). Gulbrandson also notes some more key points
that show why the America Invents Act will be a burden for small businesses,
universities, and individual inventors.
He states, that there will be a “race to the patent office” to file
first, “more trade secrecy,” as well as “more ways to attack the validity of a
US patent, [which]… scares investors and is bad for startup companies,” (Fox). In the current economy of the United States,
the unemployment rate is already high enough, and creating a patent system that
makes a burden for small business over big business is the last thing that
needs to be done.
Next, businesses
as well as individuals may even lose their patent rights. “Some of the law’s other provisions could
create new pressure on scientists and administrators to stay mum about
promising discoveries to make sure they aren’t scooped by competitors or even
collaborators,” (Malakoff). Again, due
to the first-to-file patent system, whoever files first gets the rights. In the article, “Patent medicine,” the author
states that “any scientist who has ever been caught up in a patent wrangle –
such as the competition between bell Laboratories and IBM for the US patent on
the high-temperature superconductor yttrium barium copper oxide, which famously
took 13 years to be settled in favor of Bell Labs – will see the advantages of
that,” (Patent Medicine). Although this
seems favorable to many, the fact is that someone will lose their patent
rights. Under the first-to-invent
system, whoever invented the product first received the rights to the
patent. It is easy to see that the new
first-to-file system will be detrimental to many, because a company that does
not file first may be able to invent it better than the other company.
Finally,
the Patent & Trademark Office will not be better off than it already
is. The “PTO receives fees through the
payment of patent and trademark user fees – fees paid by small inventors,
companies, and universities to protect their ideas and technology,” (Coburn 1). Although the PTO is operated by the
government, there are some major problems that take place within it. The first major problem it faces is “the growing
number of unexamined patent applications,” while the second is “the increased
time it takes to have a patent application examined [due to] a ‘lack of
connection between the monies flowing into the agency and those available for
expenditure,’” (Coburn 1). Not only are
these two problems that the PTO faces, but fees are still being diverted from
the PTO. “In total, from 1992 through
2011, Congress has diverted approximately $900 million from the PTO. As recently as 2004, Congress diverted $100
million from the PTO; in 2007, it diverted $12 million. In 2010, it diverted $53 million, and the
estimate [that was] for 2011 [was] $80-$85 million” (Coburn 1). One question of concern that should be
brought up is: how can the PTO operate the way it should with its lack of
resources and funds that keep being diverted?
Even with the new America Invents Act, the diversion of fees can still
occur. From numerous accounts of
governmental actions, one can tell that wording plays a big part in
legislation. Some problems that the PTO
will still face with the new appropriations language is that “even if Congress
appropriates funding to the PTO equal to its initial request, the PTO will
still have difficulty accessing any excess fees it collects beyond that
request,” “the bill’s new PTO Fee Reserve Fund for excess fees is not much
different from the account that exists today or those that have existed in the
past,” and that “in order to gain access to any excess fees in the new PTO Fee
Reserve Fund, the PTO must again come to Congress to ask for the money,”
(Coburn 2). The PTO has already faced
many problems and even with the America Invents Act, fee diversion will still
exist and the PTO will have many challenges to face.
Under
the America Invents Act, the complexity of inventors’ lives will increase,
there will be increased burdens on small businesses, some may lose patent
rights, and the PTO will still face the same problems if not more than it faces
today. There are many facets of the new
patent system that the author of “Patent Medicine” did not take into account,
and the new act is quite detrimental to inventors in general. The government sometimes makes right
decisions and in many cases, they make wrong ones. When the government tampers with systems such
as the patent system in an attempt to make things better, some aspects only get
worse. There are too many problems in
the America Invents Act, and just like Hans Sauer, general counsel for
intellectual property at the Biotechnology Industry Organization in Washington,
DC says, “the law is a ‘compromise, not a perfect bill, and everyone got what they
wanted, including us,’” (Fox).
"Patents." United States Patent and
Trademark Office. USPTO, 19 Dec. 2011. Web. 27 Feb. 2012. <http://www.uspto.gov/inventors/patents.jsp>.
"Patent Medicine." Nature Publishing Group
477.7364 (2011): 249-50. Nature.com. Nature Publishing Group, 14 Sept.
2011. Web. 18 Feb. 2012. <http://www.nature.com/nature/journal/v477/n7364/full/477249b.html>.
Coburn, Tom. Coburn Amendment to Prevent Fee Diversion
at the PTO. Muskogee, Oklahoma: Senator Tom Coburn. http://www.coburn.senate.gov/public//index.cfm?a=Files.Serve&File_id=9aae69ab-f5ff-46c1-a6af-97dc9ea7ab29
Malakoff, David. "Patent Reform Shuffles Who Is
First in Line." Science 333.6049 (2011): 1559-560. Academic Search Premier. Web. 19 Sept. 2012. <http://www.sciencemag.org/content/333/6049/1559.full>.
Fox, Jeffery L. "America Invents Act Receives
Cautious Welcome." Nature Publishing Group (2011): 953-54. Academic
Search Premier.
Web. 19 Feb. 2012. <http://www.nature.com/nbt/journal/v29/n11/full/nbt1111-953.html>.
Michel, Chief Judge Paul. "Torpedoing Patent Rights."
IPWatchdog.com. 10 July 2011. Web. 19 Feb. 2012. <http://www.ipwatchdog.com/2011/07/10/torpedoing-patent-rights/id=18022/>.
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