PATENT LAW REFORM AND THE AMERICA INVENTS ACT

(H.R. 1249, S. 23)

 

 

A patent reform bill has passed in the Senate, S.23, and a similar bill has been introduced in the House, H.R. 1249.  These bills make many fundamental changes in the substance of patent law that have received little attention in the public discussion, reports, and hearings on patent reform. 

On April 10, 2011, Mr. Schlicher sent a letter to three members of the House of Representatives about those changes. (link)

On May 5, 2011, Mr. Schlicher sent another letter to members of the House and Senate suggesting revisions to these bills and explaining the reasons for them. (link)

On June 6, 2011, Mr. Schlicher wrote a short paper titled “PATENT REFORM AND THE CHANGES TO SECTIONS 102 AND 103 IN THE AMERICA INVENTS ACT (H.R. 1249, S. 23).” (link) This is the summary. 

Summary.  The changes to patent law in the America Invents Act (H.R. 1249, S. 23) are being made largely in the name of changing from a “first-to-invent” system to a “first-to-file” system.  Those simple phrases suggest that Congress is making a three simple changes to the requirements and conditions for a patent in sections 102 and 103.  See sections (1) to (3).  In fact, Congress is making ten and perhaps eleven additional important changes.  See sections (4) to (15).

The title of these bills suggest they will provide incentives for increased inventing by America’s citizens and companies.  It is entirely unclear to me that the changes to sections 102 and 103 Acts will improve conditions for inventing.  Section (16).  My view is that they will probably have the opposite effect.

The America Invents Acts change laws that provided the background for the phenomenal technology-driven economic growth of the United States from 1830 to the present.  Section (17).  The economic problems that sections 102 and 103 of United States patent law addressed in the 19th and 20th centuries are the same problems that exist today and will exist tomorrow.  The supreme irony of the America Invents Acts is that they change current United States patent law to the law that prevailed in the 1790s and early decades of the 1800s.  Section (18).  The patent reformers want to adapt to the needs of the 21st century by returning to the law of the 18th century.  Congress and the courts worked for about 180 years to change those laws in response to actual experience.  Congress now apparently wishes to turn back the clock and start the whole process over again.

 

 

JOHN W. SCHLICHER

PATENTS, PATENT LITIGATION, PATENT DISPUTE RESOLUTION AND

SETTLEMENT, LICENSING, ANTITRUST, LAW AND ECONOMICS