- Remove the first-to-invent system used in the US and replace it with a first-to-file system used in other countries;
- Reduce the number of “poor quality” patents by instituting another method to reëxamine the validity of patents;
- Limiting the remedies and damages awards for patent infringement.
Leahy, Hatch, Berman, and Smith all discuss how this will further improve the US patent system. The offer little more than platitudes and fail to explain exactly why it would be beneficial for the United States to encourage infringement, discourage patent licensing, reduce the incentive to patent, and institute a race to the patent office.
First to invent v. first to file – a race to the patent office: The United States currently has a first-to-invent system. The person who can demonstrably prove that he was the first to invent a given process or article of manufacture has the exclusive right to seek patent protection. This does result in interference proceedings (when two similar applications are both pending in the USPTO) and invalidity proceedings (in trial); however, it discourages inventors from prematurely filing.
Other countries use a first-to-file system, whereby the first person to file the requisite paperwork can seek patent protection. Our system is somewhat cumbersome, as it allows for interference proceedings. Nevertheless, it allows inventors to perfect their inventions before filing for patent protection, as it discourages a race to the patent office. It also may have the effect of producing better patent applications for more novel inventions.
There is some sense in encouraging people to disclose their inventions earlier rather than later. The patent system already does so by preventing inventors from receiving a patent on a device or process which has been on sale or described in a printed publication more than a year before the filing of a patent. (This prevents an extension of market exclusivity, whereby an inventor would maintain the invention as a trade secret, and then file for patent protection for an additional twenty years.)
Before 1998, inventors would receive market exclusivity for 17 years after the grant of the patent; today, the patent term starts on the day of filing and ends twenty years later. (Some of the purpose was to eliminate submarine patents.) This provides an incentive towards filing a novel, high-quality patent application, as an application that is held up in prosecution will have a shorter period of exclusivity.
The only disincentive towards early filing that our current system has was added in the ’90s to align our laws with international norms. Originally, a patent application would only be published upon grant of a patent; if the patent office were to reject an application, an inventor could maintain his invention as a trade secret. Now, unless an inventor states that he will not seek patent protection overseas, his patent application is published 18 months after he files for a patent, regardless of whether or not he ever receives a patent. An inventor now must determine if he should seek international protection and must consider the value of his invention (as that which is potentially not protectable should be retained as a trade secret) – both of which weigh towards delayed filings and filings of higher-quality patents.
If Congress is truly interested in early disclosure of inventions, it can remove the publication requirement. (Of course, if such does not comport with international law, perhaps we ought to consider the fact that the US is a leader in technological innovation… perhaps other countries ought to follow our lead.)