Beltway blog The Hill reports that senators involved in the patent reform bill have reached agreement on language in the legislation that has lingered in Congress for much of the last decade.
There’s a certain good news-bad news aspect to this. I’m for language in the bill that allows the U.S. Patent & Trademark Office to set its own fees, rather than depend on Congress. We all know how long it takes Congress to act. The USPTO needs the flexibility to respond to market realities.
That said, I take my patent-reform legislation a la carte – and I err on the side of small or micro-entities. I’ll trust that USPTO Director David Kappos will keep true to his word and not increase fees for independent inventors.
He said in our January 2010 cover story:
“In my mind the exception to all these fee rules … is the small independent inventor community. They already get a 50 percent discount essentially on all fees across the board. We’re at least going to maintain that discount. And where we can – there a places where we can’t because of statutes – but where we can, we’re going to try to give small inventors the biggest breaks I can give them so that any increases in fees we have to make impact the small inventor community as little as possible.
So we’re going to try to ask the large enterprise community to assume the lion’s share of helping the USPTO get to a sustainable funding model.”
My thinking has definitely evolved regarding several aspects of this massive and complex piece of legislation. The full text is available here. Like so many things in life, patent reform is not black and white. Here’s where I stand on the following:
First-to-File vs. First-Inventor-to-Invent. Few other aspects of this debate are more heated than switching from the existing U.S. policy of first-to-invent to first-to-file or rather first-inventor-to-file, which is the practice in other developed countries.
Personally, I think many patent-reform detractors have overblown this debate.
Opponents say changing to first-to-file would trigger a rush to the patent office by large corporations. Since when do large corporations rush to do anything? It’s beyond naïve to think this minor tweak to patent policy would trigger wholesale changes in the way multinationals approach IP filing.
Look at the numbers – there is only a .01 percent chance of having your patent challenged on a first-to-invent claim. USPTO data show when it comes to challenges based on simultaneous, non-collaborative inventing, those who file second rarely, if ever, win.
Changing to first-to-file is statistically irrelevant. The USPTO argues that we essentially have a first-to-file system already. And it argues correctly that changing to first-to-file would “harmonize” our system with the rest of the world, reducing the cost to obtain a globally recognized patent.
Post-grant review. In principle, I’m for reform that remedies patent disputes before patents are granted. The legal system is too expensive and a too time-consuming venue for conflict resolution.
Opponents say this would allow big companies to derail and hold up issuances through serial challenges. But nothing in my reading of the legislation supports that argument.
Damages. This to me is the biggest aspect of patent reform, because at the end of the day, money is what IP is all about. The bill increases the power of courts in patent disputes, allowing judges to assess the legal basis for specific damages.
While the courts should be the last place where patent disputes are resolved, once they’re there, the prevailing party should have entrée to the full arsenal of remuneration, including punitive damages. I’m against anything that would lessen the damages that the potential independent inventor could gain in a fair legal proceeding.
