A Critique of Popular Mechanics Patent Reform Article

I applaud Popular Mechanics for tackling the under-covered issue of patent reform in Inventors Slam Patent Reform Effort. However, I disagree with some of the magazine’s assertions.

Regarding first-to-invent vs. first-to-file, PM says:

FTI theoretically allows an inventor to sit on an idea for years, gradually improving it until he or she is ready to file. FTF eliminates that strategy, making it impossible to dispute a patent or application once it’s filed. There’s no guarantee that the first person to file will necessarily land a patent, but FTF closes the window of opportunity to attack that first, successful filing.

The proposed reform calls for a post-grant review process – itself controversial because some believe larger companies will be able to tie up patents with so-called serial challenges. The bill provides the ability to challenge the patent in a post-grant-review proceeding for one year following issuance based on a broad array of grounds related to patentability.

PM’s blanket statement that FTF makes it “impossible” to dispute a patent simply is not true.

As we note in our extended interview with Kappos in our January 2010 issue, only .01 percent of patents are ever challenged on first-to-invent grounds. Those who do challenge have a 70 percent likelihood of prevailing. First-to-invent, while an important nod to America’s value of the individual, is more of a cultural implement than a real issue vis-à-vis patent reform.

PM also says:

FTF was one of the key reasons previous efforts, the Patent Reform Acts of 2005 and 2007, withered on the vine. Opponents claim that, among other legal points, the change would trigger a flood of applications from the IBMs of the world, smothering smaller, independent inventors.

I’m pretty sure proposed changes in damages and venues had more people vexed than first-to-file, although that certainly was one of the reasons. Moreover, I’m not convinced the notion that first-to-file would trigger a race to the patent office. Since when do multinationals race to do anything?

PM notes “the high cost of invention,” or more accurately, the high cost of obtaining a patent. This seems more like an observation – and a rather obvious one, at that – than a critique. You quote inventor and innovator Lonnie Johnson: “I’m looking at my books, and I have about 26 ideas I should be patenting. There’s no way I can afford to file on everything we come up with.”

That has been and likely will always be the case. There should be a high barrier to entry when it comes to what can be patented.

PM probably would have been better served noting that Kappos intends to raise fees, should Congress grant him the power to do so. PM also might have noted that Kappos would have larger entities shoulder that burden, while leaving fees largely intact for smaller entities and independent inventors.

Finally, I totally agree with Dean Kamen that nothing in the bill addresses the dearth of examiners, let alone the USPTO’s antiquated IT systems and its $200 million budget shortfall.

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