This week President Barack Obama is expected to sign a patent reform bill marking the most dramatic changes to the patent system in decades, drawing adulation and ire from varying sectors of the innovation economy.
The American Invents Act, six years in the making, contains several sweeping changes, but the main bone of contention is a transformation of the U.S. patent system from a first-to-invent application process to a first-to-file process.
While the bill aims to drive innovation, streamline the patent process, shrink an enormous backlog of pending patents and provide new recourse for patent challenges without resorting to a federal lawsuit, it may also give big companies with deep pockets a vital advantage over small organizations and early-stage businesses that don’t have the human or financial resources to win a race to the patent office.
Listen to MassDevice’s podcast Q&A with patent attorney David Dykeman.
"This is really the first patent reform in the last 60 years coming from the congressional side," patent attorney David Dykeman of Greenberg Traurig LLP said in a podcast interview with MassDevice. "It’s a really a big overhaul of the patent system."
The legislation aims to get a handle on a growing tide of patent applications in limbo at the U.S. Patent & Trademark office.
"The driving force behind the whole America Invents act is that there’s a huge patent backlog of approximately 700,000 patent applications that are awaiting examination, and this typically means it takes two or three years before you hear back," Dykeman told us. "The goal is, hopefully, with better funding and more efficiency, the backlog can be decreased, patents can be issued sooner and there will be higher-quality patents."
An unfortunate side-effect of the act is that it implicitly gives larger, wealthier companies a leg up in padding their patent portfolios. Businesses with deeper pockets and more resources to allocate to filing new patents on a regular basis can beat out smaller companies that may not have the means to keep up.
A new post-grant patent review phase also allows third parties to challenge a patent during a nine-month window, again putting cash-strapped early-stage firms at a disadvantage.
In a one-on-one podcast interview, med-tech patent lawyer David Dykeman explained how the America Invents Act reshapes the patent system, the risks and opportunities it poses for the industry and how small companies can keep up with the giants.
Click here to learn more about the America Invents Act in MassDevice’s podcast interview with patent attorney David Dykeman.
Or pick from other segments of the interview:
- Main page: Patent attorney David Dykeman breaks down the America Invents Act
- Background on the America Invents Act
- Winners and losers under patent reform
- Pitfalls and windfalls under patent reform
- “File early, file often”
- The post-grant challenge period
- Patent trolls and infringement lawsuits under patent reform
- The Supreme Court’s hand in shaping patent law
- In-house initiatives at the U.S. Patent & Trademark Office
- Meet David Dykeman