Today’s Wall Street Journal reports two new developments in U.S. IP law.
First, on Saturday March 16, the U.S. Patent and Trademark Office (PTO) is dramatically changing its patent system, from a “first to invent” to a “first to file.”* Under the old first-to-invent system, if you could document that you were the first person to come up with an idea, you got the rights to that idea–even if someone else had filed a patent for that idea first. So what’s wrong with that? It sounds logical: if you thought of it first, it shouldn’t matter that you didn’t run to the PTO before everyone else.
There are two problems: First, every other country in the world uses a first-to-file system, which means if you filed first for the patent on the idea, it’s yours, no matter who can prove they really thought of it two years before you did (from their lab notebooks or whatever). In an increasingly international economy, having our patent system align with the rest of the world is a big deal.
Second, under first-to-invent, imagine how complex the court cases get, when some inventor somewhere says that they actually thought of that idea five years ago. Then, lawyers are poring over old lab notebooks and reading hundreds of emails. It might sound simple: All you have to do is find the email that contains the idea on a certain date–but in fact, it always takes a lot of complex interpretation. Was this lab notebook sketch really evidence of the idea? Usually, it’s close but not quite exactly the idea that’s in the patent. Many inventors think their idea really was this idea, but everyone thinks their idea has a broader scope than it really does under patent law. Companies have been spending billions defending themselves against patent lawsuits, and this change is intended to reduce the litigation.
The second article** talks about copyright protection on sound recordings. The Library of Congress wants to convert their old (and decaying) sound recordings to digital, and then make these digital versions available to their patrons. And it turns out, that’s illegal for something like 177 years after the recording was originally made. The copyright protection even for the oldest recordings, made when the technology was first invented back in the 19th century, will not end until 2067 at the earliest. In Europe, in contrast, sound recordings enter the public domain 50 years after their initial release.
The more I learn about IP law, the more I realize it’s a huge complicated mess. I’ve been impressed with my IP law colleagues, negotiating complex issues at the intersection of law, economy, and psychology of creativity (hence my involvement with the issue). But as I concluded back in 2007 in my book Group Genius, patent and copyright regimes today are too restrictive, and this is reducing societal innovation.
*Ashby Jones, “Inventors race to file patents.” WSJ March 15, 2013, p. B6
**Terry Teachout, “Copyright protection that serves to destroy.” WSJ March 15, 2013, p. D6