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America Un-Invents

By Nikhil R. Mulani

President Obama believes the passage of the America Invents Act is an example of Congressional action that should be emulated in the future. In his recent address to a joint session of Congress he spoke of the act in glowing terms, applauding legislators for having "passed reform that will speed up the outdated patent process, so that entrepreneurs can turn a new idea into a new business as quickly as possible," calling it "the kind of action we need." He signaled his approval for the new law when he signed it into law on the morning of September 16th.

While the patent system is failing in many areas, the America Invents Act (AIA), despite Obama’s glowing praise, does little to fix the most pertinent issues currently facing our country's process of protecting and tracking intellectual property. Rather, it only serves to further derail the effectiveness with which patent requests are dealt. Upon a close examination, the President's advice on using the AIA as a model of legislative action seems misguided. Congress would do well to only use the AIA as an example of how not to pursue future reform.

The most crucial problem currently facing the U.S. Patent and Trademark Office is its backlog of patent applications. On average, it currently takes between two and three years for American inventors to have their patent applications processed. Beth Noveck, formerly the U.S. Deputy Chief Technology Officer and leader of the White House Open Government Initiative, succinctly summarized the problem when she commented that "The backlog has reached Borgesian proportions, and it feeds on itself: The patent examiner has less time to review more applications. Reviews become less rigorous. The easier the application process becomes, the more inventors apply." The inability of the USPTO to efficiently process patent applications is a key obstacle on the road to economic recovery. Inventors who would otherwise start groundbreaking small businesses are stuck in limbo.

The AIA targets this issue by creating a "first-to-file" rule—one where a patent for an invention is granted to whomever is the first to file their application with the office. This is very different from the current system, which follows a "first-to-invent" rule. Up till now, inventors who did not receive a patent had the opportunity to prove they conceived of the invention at an earlier point than whomever was awarded the patent. As long as the petitioning inventor also proved their diligence in filing an application, they got the rights to the patent. With the President’s signature on the AIA, this appeal process no longer exists. The "first-to-file" rule completely dispenses with justice in the service of efficiency. In the process of passing this bill, legislators ensure that only massive corporations who have the resources of patent lawyers readily at their disposal will be able to quickly acquire patents, since they will be able to outrace entrepreneurs and basement inventors to the patent desk.

The question remains as to how legislators should have approached fixing the patent system. An ideal system would reduce the USPTO's backlog without sacrificing either the quality or justice of the review process. Dan Rivicher, executive director of the Public Patent Foundation, mentions limiting the scope of patent law as an effective deterrent to piles of unread applications. After all, much of the USPTO's time is currently spent on applications that are rejected for reasons of unfeasibility. What Rivicher doesn't mention is that the most effective way to limit the scope of patent law is not to change the patent itself, but rather the application process. In an essay recently published in Wired magazine, journalist Brendan Koerner proposed just such a solution. Koerner quotes Mario Biagioli ,  a Professor of Law and Science and Technology at UC Davis Law School, as saying "The requirements to patent have become, in my humble view, a joke."

Koerner discusses an idea so simple that Congress had already used it in the 19th century.  By merely having inventors submit a physical prototype of their idea, the USPTO could eliminate a wide range of patent applications for inventions which have insufficient real-world research backing their conception. This requirement is not a far-fetched idea. A look at recent patent data reveals that inventions without a material focus, such as those of business models and drug compositions, make up less than ten percent of the application pool. Instituting a qualitative and tangible benchmark for the more than 90 percent of remaining applications is a quick way to cut through the backlog without compromising the functionality of the USPTO. This would require inventors to do more work at the outset in order to create working models of their conceptions, but such efforts would be necessary regardless; especially if they planned to create a business around their idea. Unlike the AIA, such a requirement would not put corporations and individuals on an unequal footing in the legal context of claiming intellectual property. It also would not compromise the integrity of the patent review process. Rather, it would delegate responsibility for assuring the feasibility of an invention in a manner that is efficient and ethical for all concerned

Achievements of American ingenuity all share the inspired thought that inventors put into their design. From Thomas Edison to Steve Jobs, most inventors have recognized that the world changes for the better only when people carefully reflect on the best way to translate ideas into reality. If our legislators had put some effort and creativity into their creation of the America Invents Act, perhaps they could have called themselves inventors of something more than the status quo.

Nikhil R. Mulani ’14, a Crimson editorial writer, lives in Eliot House.

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