America Invents: A Step Toward Patent Reform

The America Invents Act, now awaiting President Obama’s signature, will not solve the most serious problems of the U.S. patent system, especially the ugly mess of vague and dubious software patents. But it is a welcome step on the long road to reform.

The most notable  change in the law is a new criterion for awarding patents: To win U.S. patents, inventors had to prove they were the first to come up with the idea. The new law, following the practice of most of the rest of the world, will now award a contested patent to the first party to file for it. This may be a rough sort of justice and could prompt some premature patent filings, but it eliminates one of the most contentious and costly elements of patent litigation. And as engineers and inventors adapt to the new regime, it could ease some of the lab record-keeping and paperwork now deemed necessary to prove primacy of invention in a patent dispute.

The new law also streamlines the patent application process and simplifies fees. New procedures should mean that the U.S. Patent & Trademark Office gets to keep more of the fees it collects and stronger financing could lead to the hiring of more and better patent examiners.

But the mere fact that the bill passed the Senate 89-8 reflects the fact that the most controversial issues were left on the table. The only real opposition came from some supports of small business and independent inventors, who felt the measure tilted too far in favor of big companies. Among the issues that will have to wait for another day–or case-by-case resolution by courts–is clarification of just what sort of software innovations or business processes are patentable.