Goal of Patent Reform: More Creativity, Less Courtroom Haggling
There's no typical inventor, but despite their differences, inventors seem to agree on one thing: The U.S. patent system is a loping, sickly beast. In a system that worked, patents would accelerate innovation by encouraging inventors to publicize their designs in return for temporary ownership. But many argue the system has collapsed. Rather than spawning growth, it facilitates pricey litigation that stanches the flow of innovation by squeezing resources.
The patent reform bill passed by Senate March 8 addresses many of these concerns. As the legislation heads to the House, lawyers and inventors express cautious optimism that the bill could iron out some of the biggest wrinkles in the filing process.
A good system would have as little need for litigation as possible, said Bruce Perens, a software creator and consultant to governments and corporations on the U.S. patent system.
I fought the law ...
One study found that the rate of patent litigation doubled in the 1990s. Part of the reason, Perens said, is that so many bad patents were issued.
As an application creeps its way through the system, patent officers are supposed to check that the invention being claimed does not already exist in some form. However, the patent office is now sitting on 700,000 applications. With a backlog like that, mistakes are likely.
So many bad patents get out there. They tend to stifle invention and innovation, said Julie Samuels, a staff lawyer for the Electronic Frontier Foundation.
When an overly broad patent goes out, Samuels said, it often results in courtroom disputes between the patent holder and a previous inventor, and the damages can soar to millions of dollars. Many argue that the bloodletting has scared off small-time innovators and businesses, encouraging them to hold back new products lest they infringe on a patent they didn't know existed.
The America Invents Act stands to inject new money into the system. Perens said he hopes these funds would raise the quality and legitimacy of the patents that get passed.
He also would like to see the U.S. Patent and Trademark Office use the new money to penalize those who file patents for inventions they know to already exist.
The problem is that the patent system can be abused in many different ways, Perens told InnovationNewsDaily. It's easy to lie.
... And the law won
The laws against lying on your application are strict, but officers have largely stopped enforcing them. The only real punishment that fakers face is losing their patent in a lawsuit, which pushes even more disputes into court.
Both Samuels and Perens said that the best solution is to allow the public to move their patent application disputes directly to the patent office. This would lower the chances of bad applications making it through. while keeping the fight out of the court.
The proposed law addresses these concerns, but only partially. Innovators who think an application describes something they have already invented can dispute the patent before and after it's granted. However, nine months after the application is processed, the door closes significantly and the complaint becomes harder to prove.
It's a detail Perens isn't happy about. Large corporations have the time and money to keep tabs on every patent that gets filed, but an individual innovator is not likely to notice when a new patent overlaps with his or her own designs. Instead of a nine-month window, inventors should have the opportunity to re-examine a patent anytime there's new evidence, said Perens.
Nonetheless, it's likely to result in changes that reformers have been advocating for years.
Even though there's a lot more we'd like to see, something is better than nothing, Perens said.