In 2011, Congress enacted the America Invents Act (AIA), which ushered in the largest changes to U.S. patent law in history. Many will point to the switch to first to file (from first to invent) as proof that innovators have taken another hit. The truth, however, is that for years the U.S. had a de facto first to file system and virtually no inventors could ever prove that they invented first when they filed second. But that doesn’t mean that innovators didn’t get the short end of the stick in the AIA, because they certainly did. It just didn’t come as the result of first to file.
Two major changes ushered in by the AIA are dramatically anti-innovator. First, little talked about is the fact that foreign filed patent applications are now, in almost all cases, prior art against U.S. applicants as of their foreign filing date. Prior to the AIA that wasn’t the case. While this is probably an esoteric patent prosecution issue, it is one that has enormous implications for virtually every patent application filed in the United States. More will qualify as prior art if your application is examined under the AIA than would be applied against it if pre-AIA law applied. That necessarily means it is harder to obtain a patent.
Second, the creation of a host of new procedures to kill issued patents through a variety of post grant proceedings has caused many to wonder when a patent ever matures into a property right any more. The Patent Trial and Appeal Board at the United States Patent and Trademark Office has wreaked havoc on patent owners, killing many claims and costing patent owners many hundreds of thousands of dollars to defend rights obtained through what must have been a horribly faulty examination process.
But still the problem of the villainous patent owner continues and defenseless multinational, multi-billion dollar corporations need yet further patent reform, which is why the House of Representatives again submitted the Innovation Act for consideration, which would shift fees, stay patent litigation and strengthen post grant review from the challengers perspective.
When you combine KSR and the AIA you have a scenario where patents are harder to obtain and much easier to challenge. And we haven’t even talked about the patent eligibility cases decided over the last 5 years at the Supreme Court and Federal Circuit which have rendered everything from board games to software to genes to medical diagnostics patent ineligible.
Do you see a pattern? At each and ever step patent rights have eroded, but still the villainous patent owner problem persists. Why have none of these radical, fundamental changes to the patent laws have worked? They were all supposed to solve the problem, but they must have all failed if the helpless multinational corporations continue to need protection. Could it be that the problem never really existed, at least on the scale we were led to believe? Could it be that the offered solutions were really a thinly veiled attempt to fundamentally change the patent system so innovative startups couldn’t compete? Inquiring minds should be asking these and many other questions.
Something tells me that even if the Innovation Act were to become the law the problem of the villainous patent owner would still continue, and those that want to dismantle the patent system would continue to cry foul. It seems pretty obvious that we are in a never ending patent reform cycle and the proponents of patent reform will not be satisfied until the patent system has been thoroughly dismantled and patent rights aren’t worth pursuing.
Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations.Gene is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.