Patent Reform Was Long Overdue

            This week, the House passed sweeping changes to the patent system which was long overdue.  Earlier, the Senate passed a similar bill.  Now, the two bills will most likely be reconciled. 

            One of the biggest changes is to change from a first to invent system to a first to file system.  Most other countries have a first to file system.  While this will benefit bigger companies or those with more resources to file a patent application, it will minimize costly litigation as to who was the first to actually invent a product or procedure.  One of the most common ways in patent litigation to defend against an infringement action is to try to show that the inventor was not the first inventor of the product or procedure.  This means that a patent owner could spend several thousands, if not more, in developing, marketing, and otherwise trying to take advantage of the limited monopoly provided by the United States Government to the inventor/patent owner only to lose it after spending another several thousand dollars trying to overcome a first to invent defense in litigation.  While this may not seem perfect and it skews the playing field to big companies with the resources, it at least provides some certainty regarding patent ownership.  This, in turn, will allow an inventor/patent owner to recoup some of its costs related to the invention by way of license agreements and/or sales of the invention without fear of losing the patent later in litigation based on a finding by a court or jury that the inventor was  not the first to invent the product or procedure. 

            Another key change to the reform is to prevent Congress from diverting millions of dollars in fees collected by the United States Patent and Trademark Office ("USPTO") to other uses.  This change is significant because it will allow (or hopefully allow) the USPTO to process patent applications much quicker.  As it stands now, the average time to process an application is about three years.  Since protection for plant and utility patents is 20 years from the date of the application, an inventor "loses" three years in the patent application process.  Moreover, in that three years, the invention may become obsolete, and therefore, would not allow the inventor to take advantage of the work he/she performed in creating the new product or procedure. As such, this contradicts the purpose of providing a limited monopoly to an inventor in an effort to promote invention and creativity. 

            Given that the last update to the patent system was in 1952, this update is long overdue.  It is not a perfect resolution, but neither is the current system.  It is, however, a better system for the current era.