The tech industry helped launch the push for patent reform
six years ago, but it was not among those cheering the passage of the bill
yesterday. Those applauding the loudest were those who originally fought patent
reform, and instead managed to get the bill so watered down that it no longer
promised real reforms.
The tech industry faces an onslaught of tens of thousands of
patents per year, many of which are of dubious quality. In the pharmaceutical industry, patents
are few and may are clearly of value.
Players are few, patents are a useful source of business and technical
knowledge. One touted reform is
the post-grant review which will allow patents to be challenged within 9 months
after they are issued. The
limited window is fine for pharmaceuticals but it is not practical for high
tech where there are so many patents and most will never be asserted. Tech would rather see a proceeding that
serves as a real alternative to the cost and delay of litigation.
Much has been made about how patents will now depend on who is first to file
versus who is first to invent. While the rest of the world is first-to-file,
it’s hard to anticipate how first to file will play out in the United States
with our very aggressive patent culture.
It could be. As
our President CEO Ed Black told the Washington Post, “Every time
I’ve heard either a Republican or Democrat talking about jobs relating to the
patent bill, I feel like I’m in ‘Alice in Wonderland… Unless they’re counting
patent lawyer jobs, it’s very unlikely.” If first-to-file
spurs a land rush to the PTO, the backlog – and the burden that too many
half-baked patents places on industry – will get worse. Fortunately, the House version that
passed the Senate yesterday included a modest provision for prior user rights,
which will alleviate some of the pressure to file quickly on everything.
