SALT LAKE CITY — Sen. Orrin Hatch is spearheading an effort to revolutionize how the federal government issues patents, the grants that protect inventors' property rights from date of invention until 20 years after the filing of a patent application.
A Hatch-sponsored bill called America Invents Act aims to streamline an overburdened U.S. Patent and Trademark Office backlogged beneath 700,000 pending patent applications (a quantity which will require several years to resolve even in a best-case scenario). The legislation will move the awarding of U.S. patents to a system in line with what most of the world employs, where the first party to file for a patent receives the patent.
Some voices, though, strongly prefer that the U.S. continue with the "first to invent" system in place since 1790 that prioritizes proof of being first to invent something over being the first to file a pertinent patent claim. They warn that America Invents Act will harm individual inventors and small business owners.
"Startups and small business inventors do not publicly disclose the details of their inventions right after they are conceived because it would tip off competitors to essential details of their new technology," inventors' rights advocate Michele Nash-Hoff recently wrote in an op-ed piece on the San Diego Newsroom website. "The concern of independent inventors was that this bill would favor large companies who can afford to file applications for patents before vetting the new technology because it would alter patent law to effectively kill the grace period by conditioning it on early disclosure."
Hatch argues that any harm small-scale inventors may incur will be minimal at most. "In the past seven years," Hatch said recently on the Senate floor, "more than three million applications have been filed and only 25 patents were granted to small entities that were the second inventor to file but later proved that they were first to invent."
Hatch made a point of specifying that America Invents Act would permit individual inventors to protect their inventions by filing a provisional patent application — a de facto placeholder in a "first to file" system — for only about $100.
Grant Foster, a Salt Lake City patent attorney for law firm Holland & Hart, disagrees with Hatch's assertion that the provisional patent application can be an economically feasible option for small-scale inventors.
"The patent laws require that you describe the invention in a way that enables a person of ordinary of skill in the art to make and use the invention without undue experimentation," Foster said. "Therefore, you can't just throw together a few sentences, file it for $100 and consider yourself protected. That to me is not reality."
America Invents Act passed the Senate in March by a vote of 95-5. On Wednesday, the House began debating its own version of a bill to reform federal patent practices.
Ultimately, Foster views the U.S. switching to a "first to file" patent system as virtually inevitable.
"We will turn to a 'first to file' system whether it's in this legislative session or a year or two down the road," he said. "The main reason is because we are getting global pressure to do so. Most foreign countries employ 'first to file' systems, and so for the U.S. laws to be in harmony with the other international patent laws we will eventually go to a 'first to file' system.
"Whether I like it or not, it's going to happen. I think it will put more pressure on patent attorneys to turn their work around more quickly. The nature of the product that we produce will have to be streamlined, so I think it will make my job more difficult."
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