Tuesday, July 13, 2010

Trent Franks speaks out on "patent reform"

Trent Franks identifies issues with the supposedly non-controversial change to "first to file":

First and most importantly, the Senate managers amendment changes the current patent process from our unique “first to invent” system to a “first to file” system. Purportedly, this change is being done to eliminate costly contests called “interferences” that occur between near-simultaneous inventors who claim the rights to the same subject matter. The goal of eliminating interferences is achievable by simple amendment changing Sec. 102(g) to a first-inventor-to-file criterion.

However, the current version of the amendment does much more, actually altering all of Sec. 102 to redefine the prior art and essentially gut the American one-year grace period, which has historically been a unique characteristic of the U.S. patent system. The one-year grace period is a time in which inventors are allowed to further develop, perfect and begin to market their product to investors and potential business partners in order to obtain the necessary funds to complete the patent application process. Many times, this is the first opportunity inventors will have to start a small technology-based business for the first time, which often requires obtaining loans and legal counsel as they seek to navigate the tedious patent process. The grace period has thus provided a critical protection against losing their patent rights because of leaks or inadvertent disclosure of information related to their invention prior to making their patent application. To alter or eliminate this grace period would be a grave mistake and would only serve to undermine patent holders’ rights and hamper innovation.

Franks concludes: As Congress undertakes to bring significant reform to the patent system, it must take caution to avoid worsening the bureaucratic mess hindering Americans’ ability to realize the benefits of their own intellectual property.


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