Late Tuesday, the United States Senate overwhelmingly passed the America Invents Act (S.23). Among other changes, this bill favors corporations and patent trolls over individual inventors, by enacting a first-to-file patent rule. Right now, the United States has a first-to-invent rule. Whoever invents something first, assuming they are diligent in reducing it to practice, owns the rights to the invention. Under the new law, whoever makes it to the Patent Office first owns the invention, regardless of who invented it first.
This new first-to-file rule punishes independent inventors, who often do not have the resources to immediately patent their inventions. Conversely, corporations that have the resources and connections to file patents immediately and usurp the rights of inventors out trying to raise capital. The America Invents Act mandates a race to the Patent Office. This is great news if you are a patent attorney. Inventors will now be patenting inventions before even testing the market. It is bad news for inventors, who will start seeing their inventions taken by large corporations with the necessary resources to get the patent process moving more quickly.
In addition to the first-to-file rule, the America Invents Act would enact the following new rules:
- Allows the United States Patent and Trademark Office (USPTO) to set its own fees;
- Prohibits Congress from diverting patent fees to other government agencies;
- Allows third parties to submit evidence and explanations challenging pending patent applications;
- Creates a nine-month “window” after a the USPTO grants a patent, allowing third parties to challenge the patent;
- Makes it harder to challenge the validity of a patent; and
- Prohibits patents that give companies monopolies over novel tax strategies.
The America Invents Act rewards large companies and patent lawyers. It also punishes small inventors by forcing them to get their patent applications on file as soon as possible. What the America Invents Act does not do is increase the quality of patents the USPTO is issuing, eliminate patent trolls or encourage innovation in the information technology sector. If you are an independent inventor, or work in the information technology sector, you might consider contacting your Congressional representative and voicing your opposition to the America Invents Act. It might make your patent attorney mad, but trust me, he/she will get over it.