Last night patent reform was big enough news to make the FOX News 6pm news hour, but frankly there wasn’t much “news” to report from activities in the Senate yesterday. Senator Leahy initiated discussion on S. 23, the Senate version of patent reform, and a brief discussion ensued. More is expected today on patent reform in the Senate.
Louis Foreman, the publisher of Inventors Digest and producer of Everyday Edisons, was interviewed for the FOX News story, as was USPTO Director David Kappos. Louis hit on two big issues for innovators. First, the speed of application processing. On this point he explained: “With technology advancing as rapidly as it does today, your invention may not even be relevant by the time the patent actually issues.” Second, the fear that after investing in a patented invention prior art will surface and take your rights away. On this point he explained: “[Inventors] also want certainty, knowing that when their patent does issue that someone’s not gonna jump out of the weeds and say, ‘Aha! Here’s a prior art reference that invalidates your application.'”
With patent reform finding its way into the popular news media beware inaccurate or misleading statements about patents and the reform bill. For example, in the FOX News story it was stated: “Inventors currently pay around $1000 to apply for a patent ($500 for individuals and small companies).” While not technically inaccurate I suspect this statement does set up false expectations on the part of many in the public. What is being discussed here is the basic filing fee. Many thousands of dollars can be spent on competent professional assistance, and there will be a smaller number of thousands of dollars likely due to the Patent Office over the course of the pendency of a patent application. In the time allotted for the story, I suppose this wasn’t anything eggregious, but likely misleading for the uninitiated.
Easily the most eggregious thing written about patent reform, at least that I have seen, is a statement from the Associated Press. In talking about the grace period in the patent reform legislation the AP wrote: “It comes with an enhanced grace period to protect inventors who publicly disclose their inventions before seeking patents.” This is not misleading, it is flat wrong. The grace period contained in S. 23 is not “enhanced,” but rather it is reduced.
Current law allows an inventor to still obtain a patent if an application is filed within 12 months of a public use, a sale or publication of information about the invention. Under S. 23 the law will change and the grace period will be more narrow. S. 23 talks about “disclosures,” which is not a term of art that would mean public use or sale, so there is tremendous uncertainty as to what the grace period will apply to. Additionally, today the grace period applies to both inventor activities and third party activities. Under S. 23 many third party activities would prevent a patent from issuing without any grace period. See: Senate to Vote on Patent Reform, First to File Fight Looms.