Patent Reform 2007 - What are the Issues in Bill S. 1145?
NOTE: This sections will be updated with more issues, so please bookmark this page and check back in.
Any one of the issues in S. 1145, alone, would be a major change to the U.S. patent system. Many of the proposed changes in the Patent Reform Act of 2007 are tied-in to the worldwide “first-to-file” system. This first-to-file “package of issues” will destroy the intrinsic incentives and original intention of the U.S. 200-year old patent system.
The laws of the United States are also based upon “case law”, which means that the laws are interpreted based upon the results of court cases. After a court decision is made, future case rulings are based upon the decision of the earlier cases. So the U.S. patent laws have evolved through 200 years of case law. These drastic proposed changes throw out those 200 years of case law, and create a totally new system that has not been tested through court cases.
The proposed "first-to-file"changes stack the rules in favor of well-funded large corporations by encouraging infringement, making the patent process so costly that only big corporations can afford the process, and creating ongoing patent challenges to the independent inventor. Especially in combination, the package of issues tied-in to "first-to-file" work against the independent inventor to "check mate" him at every turn.
Here’s a brief summary of the “first-to-file” package of issues:
- Current U.S. patent system: The existing 200-year old “First-to-Invent” system allows inventors to delay getting a patent until after their product has been researched and developed enough, as long as they keep it secret and maintain the proper invention logbook. Since an invention is often improved, tweaked, and perfected during the research and development stage, this results in a much stronger patent based on the final version of the invention, as well as allowing the inventor to spend his/her limited funds on the development, rather than on the patent, in the early stages. This is an extremely important issue with the more technological inventions that often take years and years to develop.
- Worldwide first-to-file system: Whoever files a patent first, would get the patent. This means that whoever has the money to file a patent first, gets the rights to the patent, not necessarily the first inventor. This tilts the patent system to those who can afford the patent process, not those who are original inventors. Being pressured to file a patent immediately encourages a rush to patent without the proper development of ideas. Since the original patent won’t match the final developed product, this means that incremental changes will also need to be patented to protect the idea throughout the development period for as long as it’s being evolved. This results in having to file multiple and successive patents for each idea, a process only large corporations can afford, pricing most independent inventors out of the inventing picture.
- Current U.S. patent system: Currently in the U.S., the patent laws require that the individual inventors be listed on the patent. Issuing the patent to the “true inventor”, an “individual”, is at the heart of the U.S. patent system. In corporations, all patents have to be filed in the name of the inventor-employees, and are shown as “assigned” to the corporation within the patent (i.e., all intellectual property rights are turned over to the company, this is something that the inventor has already agreed to in the employment agreement). Both the name of the inventor, and the corporation that owns it, are on the patent. This system has worked well, so it’s not necessary to change this aspect. When licensing an invention, whether filed by the inventor or the licensee, the patent is always filed under the inventor’s name, so there’s never any question about who the true inventor is.
- Worldwide first-to-file system: This is tied in to the worldwide “first-to-file” system. This would allow corporations to file for patents in their corporation’s name, eliminating the inventor from the patent. When you combine “first-to-file” with eliminating the inventor from the patent, it’s easy to see that it’ll be very easy for corporations to take inventions from independent inventors witout paying any licensing fees or royalties, saying that they invented it in-house and own the rights, because they rushed to file the patent first.
Prior User Rights:
- Current U.S. patent system: Currently, the U.S. “First-to-Invent” patent system gives an “exclusive” and limited time monopoly to the “true inventors”, individuals, which is at the heart and soul of the U.S. patent laws. The patent “excludes” anyone else from making, using, selling or exploiting the invention. Under most circumstances, anyone who is using, making or selling the patented invention is infringing.
- Worldwide first-to-file system: This is tied in to the worldwide “first-to-file” system. This would allow anybody who claims they were making, using, or selling a product, before the patent owner filed a patent, to continue without paying licensing fees or being sued for infringement. In a patenting environment ruled by large corporations under a “first-to-file” regime, this is a necessary consolation prize to allow wee inventors and small businesses to have limited rights to continue running a business based on an invention where perhaps they were the “original” inventor who couldn’t afford to file a patent(s) first. But they wouldn’t have a patent, thus they wouldn’t have any rights to license, but could only manufacture and sell it themselves). Yet on the flip side, if an independent inventor, who is the true inventor, happens to make it through all the new hoops and hurdles, files a patent first, and becomes successful, he/she wouldn’t be able to stop a large corporation from competing if that large corporation claims “prior user rights”, saying that they were making, using and selling the invention prior to the inventor’s patent filing.
- Current U.S. patent system: The U.S. patent office automatically publishes all patent applications 18 months after filing, unless the inventor “opts out” if he is only going to market his invention in the U.S. This allows the pending patent application to remain secret until it is granted/issued. For patent applications that are rejected by the patent office, the inventors can withdraw the patent applications so that they never get published, which allows them to use the invention under “trade secret” protection where they don’t ever reveal how the invention works.
- Worldwide first-to-file system: This is tied in to the worldwide “first-to-file” system. The U.S. Patent Office would automatically publish “all” patent applications 18 months after filing - whether pending or rejected, and even if they‘re only going to be marketed in the U.S. Most patents currently take about 3 years to issue because of the backlog of applications at the patent office, so with this provision, pending patent applications would be looked at by competitors worldwide and could be infringed upon even before the patent is granted/issued. Suing for infringement requires that patents be issued/granted, so the patent filer would be helpless to legally stop an infringer until the patent is granted, which would be at least another 18-months (with the current 3 year timeframe to be issued), or more, if it takes longer than 3 years for the patent to be granted.
This is a partial list, this section is being developed, so bookmark it and please check back again.