In his 2011 State of the Union address, President Barack Obama, touting U.S. innovation, research and development, called on Americans to “win the future.” This, he said, is “our generation’s Sputnik moment.” It now looks like a key driver of innovation could now be at risk.
A new bill – the America Invents Act (formerly the Patent Reform Act of 2011) -is making its way through Congress. It would change America’s inventor-friendly patent system to favour whoever files for an application first.
As Clyde Prestowitz, writing on his blog at Foreign Policy, points out, America’s penchant for invention is due in large part to its patent system, which grants the original inventor patent rights even if another person or corporation files for the patent first.
This is very helpful to individual inventors and small companies because it gives them time to test the viability and commercial potential of their inventions. It also protects them from those big corporations or others who might hear of their invention and rush to be first to patent it.
Obviously, it’s simpler to award patents to the first person that files an application, regardless of whether or not they are the original inventor. As Prestowitz points out, the new act also obviously favours big corporations who can file patents as soon as they hear about a new invention.
The bill would also give foreign inventors an advantage over Americans. Via Prestowitz:
A German inventor files for a patent in Europe and then, under a bi-lateral treaty, a bit later for the same patent in the United States. Shortly afterward, an American files for a U.S. patent on a similar (not identical) invention. Under the proposed new legislation, the German application would be considered prior art that would block issuance of a U.S. patent to the American applicant. But the reverse situation would not block issuance of a European patent to the German applicant.
Prestowitz goes on to urge Congress and Obama to kill the bill, arguing that, in this instance, efficiency and expediency should be sacrificed to save entrepreneurialism.