A Dupe of the Opposition to U.S. Patent Reform? Me?

Um... Yes... But, I was an unwitting dupe. I swear I realized just a few days later that I had been duped. And the subject matter, the Director of the Beijing Intellectual Property Institute commenting on the new U.S. patent laws, was more than appropriate for this blog. I soon discovered that this email was sent to many bloggers. The message implied that the U.S. was weakening its intellectual property rights in patent on par with China, which everyone "knows" has a horrible IPR record. Well, today I received a much more explicit email from a similar group, asking me to post a list of letters in opposition to patent reform sent to Senators. Rather than printing this, I would instead like to discuss one of the implications of patent reform.

The major change to our current system in the Patent Reform Act of 2007 is changing the US system from the first to invent gets a patent, to the first to file the patent is entitled to the patent. This would put the U.S. in line with the patent systems of the rest of the world. That's all fine and well, but a first to file system means that inventors must file for a patent, and therefore disclose their invention, as soon as possible if they want to receive patent protection for the statutory period. As the law currently stands, the patent must be filed within one year of invention. Under the current system, inventors have one year to develop complimentary technologies, and business strategies before disclosing their patent to the rest of the world. Once a patent is disclosed, other inventors can begin working on patent workarounds to produce a (not too) similar invention.

The main bill supporters are Microsoft and Oracle. The main bill opponents are start-up companies and other small inventors. A first to file system incentivizes early disclosure of the invention, and the earlier the invention is disclosed the earlier others can begin inventing workarounds. The "Big-Boys" like Microsoft and Oracle are in a much stronger position than small companies to muster resources to quickly develop products and enter markets based on a patent than the small companies which have about a year to dedicate to this process under the current system.

IP law is tasked with finding a balance between the free use of ideas to further innovation, and rewarding and restricting the use of new ideas to encourage innovators. A first to file system places a weight on the free use of ideas side of that scale, and legislators have the unenviable task of determining if there is balance. Whatever the answer, I don't see the current bill turning the U.S. into the perceived Caribbean that is China.

For more on the other interesting points of the Patent Reform Act of 2007, checkout this link.