I probably could have thought up a more exciting title for this blog post! It’s hard to make patent reform sound exciting (apologies to my law colleagues who study intellectual property!). But getting it right is absolutely critical to a country’s innovation.
This past Monday (February 28, 2011) the U.S. Senate began debate on a patent reform bill that would change the patent system from the current “first to invent” system to a “first to file” system. First to file is the way just about every other country does it; what it means is that whoever files the patent first gets the rights. In contrast, First to invent means that filing for the patent first doesn’t guarantee that you’re the owner; someone can challenge your patent by claiming that they actually had the idea first. Then, in a long (and expensive) court trial, that person has to present documentation that proves they had the idea before anybody else.
The basic issues seem to be:
1. First to file is a lot clearer and simpler. No more long legal battles where the court has to pore over lab notebooks and listen to technical arguments about whether this or that sketch is “really” the idea represented in the patent being challenged. Patent disputes would largely disappear from the courts.
2. First to file seems to favor big corporations, who can afford to have patent lawyers on staff who can file patents almost immediately after their researchers come up with something new. The independent inventors can’t file as quickly because they have to find a patent lawyer, bring them up to speed on their technology, etc. And it costs $4,000 to file a patent (although there is a $110 “provisional application” that would still establish priority).
The bill has already been unanimously approved by the Senate Judiciary Committee and appears to have bipartisan support in both houses of Congress.
So which system will foster greater innovation? In recent decades, the U.S. has been the most innovative country, so defenders of the current system can argue “if it ain’t broke, don’t fix it.” But many other countries are also innovative, even with a first to file system. So much of U.S. innovation comes from small startup companies, that I have to admit I’m nervous about shifting to a system that could disadvantage those small startups vis-a-vis the big corporations. The key, for me, is to make sure a first to file system doesn’t end up favoring big corporations at the expense of small entrepreneurial startups.