Cutting Edge Computing

Will We Finally See Patent Reform? June 22, 2010

So says this article in CNN Money.  A Senate bill promises to provide flexibility on patent fees (the PTO receives no government budget, and is dependent entirely on those fees) in order to build a more credible organization.  In addition, the article notes some failings in the current system:

“As the law stands now, inventors can sue for infringements on their intellectual property even if they never filed to patent it. Companies can request reviews after a patent has been granted to delay competitors from bring new products to market. Patent disputes take years to work out in court, and often cost both sides millions of dollars.”

This article positions patent reform as a significant jobs creator.  I confess that I don’t see that.  While there is a backlog of 700,000 applications at the PTO, that doesn’t mean that those submitting the application are sitting around waiting for a patent to be awarded before commercializing the invention.

What does happen is that defending a patent today is not a straightforward processes with a predictable conclusion, and can cost a lot of money.  Many choose not to defend, in order to avoid the cost and uncertainty.

From a technical standpoint, probably the biggest change would be that the first filing takes priority over first invention.  That makes it much easier to determine infringement, but it means that it may create a race to file, which is likely to favor larger and wealthier companies.

However, even as the issues are pretty nonpartisan, the bill itself is a low priority, given other topics that tend to garner more press.  As a result, patent reform still has a ways to go before a vote, even though that vote will probably be in favor.

I’ve written on tech patents in the past.  Conceptually, the idea is certainly a good one, and one of the foundations of innovation.  But a combination of antiquated patent laws and gaming by tech companies has made it less a tool for innovation and more of a quagmire.  Tech companies are increasingly collecting patents not to protect their innovations but as pawns to be traded off in case of patent suits by others.

Reform should help that, even though a “first to file” system puts different pressures on companies and individuals.  But for first to file to even have a chance, we need a patent office with the ability to quickly evaluate and made decisions on applications.  Ultimately almost anything has to be better than the current system.