As we previously blogged, President Barack Obama recently signed the Leahy-Smith Invention Act (“bill”) designed to overhaul America’s patent laws. Prior to this, there have been several unsuccessful attempts to revamp the US patent system since 2005. However, passage of the latest bill is not necessary a victory for inventors or the general public, as it creates just as many problems as it intends to solve. The bill’s change in US inventor rules is slanted to big business interests, and is unlikely to bode well for an already overtaxed system.
The current patent system is groaning with 700,000 pending patent applications to be examined by an insignificant number of patent examiners. Currently, there are about 7,000 examiners to review, examine and make legal determinations on the merits of each and every application. The one positive note in the bill is that more money will remain in the USPTO office, thereby permitting the hiring and retention of patent examiners. However, throwing more money at a problem is not necessarily the best solution to a job that is tedious, technical, repetitive and that some examiners have described as ‘boring.’ The USPTO has also been said to hire less and less qualified personnel with the right combination of intelligence, language skills and psyche to do the job.
Doing the job of protecting the small inventor is also a gigantic new problem as the law takes effect. For years the US patent system was a “first to invent” system that protected the rights of the actual inventor regardless of whether his legal documents filed at the office were late in comparison to another filer. Now America follows the rest of the world and falls to the siren’s call of the “first to file” system. Who will protect the small inventor from industrial espionage or massive vague filings from industrial powerhouses that might file sketchy patent disclosures on broad swathes of technology?
Some concerns of this system focus on big business’ seize of territory belonging to the lone inventor through a veritable avalanche of cases seeking to bury the real inventor in numerous legal disputes on competing similar technologies. It is not surprising that major companies like Microsoft, Google, and Apple have been promoting the Leahy bill as a world harmonizing piece of legislation that will help innovation. When did it become a maxim that harmonizing laws with the world would help any particular issue? In this case, a rush to be globally politically correct will break the back of the small inventor and, in the long run, US technological innovation.
Another minefield opened up by the legislation is the definition of “prior art” as defined by the possibility of inventor disclosure of some or all of the technology covered by a patent. Thus, the previous grace period of one year is now in doubt, and in some circles there are rumblings that a new law will need to be implemented to correct this problem. Perhaps an enterprising group of lawyers will soon enough challenge this slice and eat it for dessert.
Registered Patent Agent