First to File Coming?
Posted Monday, February 28, 2011.
As I write this, Sen. Orrin Hatch of Utah is speaking on the Senate Floor during debate on S.23, what was previously known as the “Patent Reform Act of 2011,” but what Sen. Leahy is now calling the “America Invents Act of 2011”.
Senator Hatch points out that there has not been meaningful patent reform in over half a century, but that during that period there have been significant technological advances for which corresponding changes in intellectual property laws are needed.
The proposed change with the greatest significance is a move to a “First to File” system of patent issuance. Today, the United States uniquely has a “First to Invent” system. Should S.23 be passed into law, the individual or entity who files a patent application on an invention first would be the one that receives the patent on the invention, irrespective of whether another invented it first. “First to File” is another initiative to harmonize the United States patent law with the rest of the world.
Senator Grassley of Iowa is now speaking, and he believes one result will be improved-quality patents. He says the ability of third parties to submit prior art during the examination process will facilitate that.
Still, some question whether changing the patent system to a “race to the patent office” will really result in higher-quality patents. Many foresee patent applications being submitted without the inventions being fully fleshed out, for the purpose of being the first to file and receiving priority over all others, including those who might have a fuller conception of the invention but less in the way of resources.
Stay tuned… there may be a vote this week, perhaps even today.