U.S. moves to first-inventor-to-file patent system, impact uncertain
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S. moves to first-inventorto-file patent system, impact uncertain www.uspto.gov/aia_implementation
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n September 16, 2011, President Barak Obama signed into law the America Invents Act of 2011, authorizing the most major patent reform since 1952. The Invents Act aims to spur innovation and create jobs, but some worry that the change from the current firstto-invent patent system in the United States to a first-inventor-to-file system will favor large companies and lead to other unintended consequences that could negatively impact innovation in the United States. Under current law, the order in which two or more near simultaneous patent applications are filed for the same invention makes no difference—the patent is awarded to the first inventor. However, under the new law, effective March 16, 2013, the patent will be awarded to the first inventor to file for a patent. How this change will affect materials innovation is not yet clear. One motivation for moving to the first-inventor-to-file system is that U.S. patent requirements will align more closely with those in other countries, which are all based on a first-to-file system. Another is to streamline the patent application process, said Director of the United States Patent and Trademark Office (USPTO) David Kappos in a live video chat hosted by the White House after the bill was signed. The USPTO has a backlog of nearly 700,000 patent applications to review, and the average review time currently borders on three years. The USTPO is working to reduce this time to 20 months, said Kappos. However, some are concerned that the wait time may actually increase as a result of this change. If, under the firstto-file system, inventors feel pressured to file patent applications as soon as possible for every idea, the United States
could see a large increase in the overall number of applications. Also, more inventors are expected to file preliminary patent applications under the Invents Act. Preliminary patent applications enable inventors to establish an early filing date for a low fee, and then claim that date on the actual patent application filed up until one year later. These numbers are expected to increase since the filing date, not the date of invention, will be the key to receiving a patent.
Photo courtesy of Senator Patrick Leahy
Patrick Govang, a former director of the Cornell Center for Materials Research who left in 2006 to form a startup company, said that the long wait for a patent can hinder innovation. The longer the patenting process takes, the more money a company has to raise or invest at a time when its risk profile is the highest, he said. “The real value of a company is the value of the technology, and the value of the technology is defined by intellectual property.” Govang’s start-up, e2e Materials, creMRS BULLETIN
partner of Lauder Partners LLC, a Silicon Valley-based venture capital firm that invests in information technologies. The Invents Act also weakens the grace period that inventors have to refine their ideas, explore the market, and raise cap
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