September 10, 2011
New Patent Law Usurps Creative Ownership
While you were asleep this week, looking at images of hurricanes that never appeared, ephemeral speeches about Jobs that won't exist and other chicanery...the Congress ramrodded a particular bad piece of legislation by an overwhelming majority and it is now sitting at the President's desk.
I felt compelled to say something and here is the text of a comment I wrote in the Washington Post.
Posted by jabailo at September 10, 2011
01:17 PM | Email This
The problem I have with this legislation if the change from First to Invent to First to Patent. This is offered as a "cost savings" measure....but isn't everything? What this is says is that the actual process of invention and the creator of inventions is completely detached from the US Patent Process. That is a very, very dangerous thing. That means that the Patent process can now be used by those with the means to "run the tables" to grab up any and all materials ever published or ideas spoken and claimed, before the actual creative person gets to. Even more chilling is that it closes out any recourse to that person to make a claim. It's as if I said, on Jan 1, 2012, I am creating a new Real Estate system. If you don't file a form to claim your house, then I can file for $10,000 and own it. So, no doubt, the Biggies will be scouring the Internet and doing the usual claim to own everything.
This legislation is completely at variance with the intent and will of the patent process espoused in the Constitution, which was simply to allow creative Americans a period of time to bring their ideas to market. There is no reason to stray or change that intent. I am deeply disappointed that this legislation was rammed through especially during a time of confusion this week and by so many "conservative" members of Congress. Do any of them realize what they've created?
Our last hope is that the President might actually read this egregious bill and veto it. I would hope that a sane Supreme Court would strike it down for the absolute injustice that it is.
It's not at all like you portray. I personally own a dozen patents myself, have assigned a few dozen more, and currently have a dozen more pending - and I'm an actual inventor for Intellectual Ventures.
First to file is the standard in the rest of the world; only the US has first to invent. The problem with the US system is reconciling it with other countries when filing internationally. Additionally proof of date of invention is extremely difficult - often when writing a patent the inventor will be forced to clarify some critical details that make it work.
Additionally, your example of scouring the Internet isn't true; if it's already published then it does not qualify for patenting. That's part of the plan - if your invention is disclosed anywhere by anyone, then you cannot patent it - it's no longer novel. Compare that to what we have now where you have 12 months from initial public disclosure to actually file your patent.
I don't know any serious inventor who's upset about this move. If anything it strengthens the inventor's hand since it is much harder for a big company to claim "they thought of it first" and present fraudulent records of invention timeline (which does happen). Now it's incumbent upon the inventor to actually file his patent - protect his idea - before he spreads it around. That takes a lot of the pressure of NDAs and secrecy off the process of shopping a new idea.
It's a good move, and it's about 3 decades overdue.
I would also like to see fees based on a percentage of license fees earned.
So, patenting should be free...but, as the patent generates revenue, a percent should revert to the Federal Government for "enforcement". I would go as high as say, 25 percent....essentially an "asset tax".
Right now, you pay that kind of tax - it's called capital gains and it applies to royalties earned on licensing of patents. I pay that regularly.
And there is also a fee to file, and a fee (increasing) at 3.5 years, 7.5 years, and 11.5 years after issuance of the patent. If the patent's not making you money, don't pay the continuance fee and it lapses.