Are the new patent reform rules fair? Yes.
With invention, progress, and time comes the need for change. In observing changes taking place in a truly global economy, moving to a “first-to-file” system is clearly the better option for inventors and our economy.
Before I began my career in Congress ten years ago, I built a consumer electronics business. The basis of my business, however, wasn’t electronics–it was ingenuity and creativity that led to patents. I have 37 U.S. patents registered under my name. Nonetheless, I was a forceful advocate of the newly enacted first-to-file patent system.
The new system enhances and modernizes protections for inventors, as required under Article I, Section 8, Clause 8 of the Constitution. First-to-file incentivizes an inventor to file a patent for their new creation, rather than keeping their creation a secret. If two people apply for separate patents for the same idea, but only one can demonstrate he actually did the work that led to the invention, it doesn’t matter who files first. The new standard is, in reality, the “first-inventor-to-file.” It is, in essence, a tiebreaker for the rare but not unheard of cases when multiple inventors–individuals who can each show independent work–have essentially the same flash of genius that leads to an invention.
But a better tiebreaker for rare situations isn’t the impetus for this reform. One of the most important improvements the new system offers is the prevention of abuses, most specifically, frivolous lawsuits from individuals who develop minor technologies anticipating that someday they’ll have a use in larger products. In such circumstances, these individuals, known in many circles as patent trolls, don’t patent ideas and don’t publish them–they simply wait for someone else to put money and effort into researching a similar technology. Once it’s clear the work of others will yield a profit, this supposed “inventor” files for a patent to create the basis for a lawsuit. Some of the larger patent trolls have made hundreds of millions of dollars through this process.
Patent trolls and frivolous lawsuits aren’t what the patent system is intended to protect. The first-to-file system awards and protects inventors who take their work to the patent office and attempt to use or sell inventions in ways that grow our economy. It also establishes a process that gives greater clarity and validity to patents issued. It’s not intended to protect those who sit on their work and try to game the legal system with trial lawyers, though this has increasingly been the case under the old first-to-invent system.
As someone who grew up in a working class neighborhood outside Cleveland, dropped out of high school to join the Army, and wouldn’t have had the business success I did without patents, I respect and have humble gratitude for the previous system that helped me. I am confident, however, that the new first-to-file system does more to protect inventors so they can focus on creating technologies that better lives instead of worrying about stumbling into legal traps. Inventors are people who change the world–the Wright brothers, Thomas Edison, and George Washington Carver, just to name a few–faced many unique challenges but not every challenge they would face today. This new switch to first-to-file, and other reforms included in the America Invents Act, will open doors of opportunity for future great inventors by creating better rules and increased investment to support the business of innovation in the 21st century.