On Saturday, around 18 months after President Obama signed it into law, the Leahy-Smith America Invents Act will take effect. Ostensibly, the act is designed to bring U.S. patent law in line with the rest of the world. Of course, not everybody feels it will help achieve the patent system’s goal of protecting inventors while fostering innovation, and its effect could be even more pronounced on the DIY inventor.
Although the act includes a number of small changes, the meat of it is considered the biggest shakeup at the USPTO since 1952. Formally known as H.R. 1249, the act was penned by Sen. Patrick Leahy (D-VT) and Rep. Lamar Smith (R-TX), the duo who introduced the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). For product designers and makers and DIYers the proverbial monkey wrench is being thrown into the mechanism for filing a patent — and the timing with which you do so. Today, if you file a patent, someone can come along and tell you they had that idea first, and with much documentation and legal wrangling, deny you the right to apply that invention. Tomorrow, nobody will care who came up with the idea first — only who filed it.
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There seem to be some subtleties to this law worth digging into, especially the implications for individual inventors.
For example, there is a ‘derivation proceeding’ provision to challenge a patent filing based on it being derived from the original inventor, and there is also a substantial net reduction in patent filing fees for individual inventors based on ‘micro-entity’ status. The Wikipedia article seems to provide a good tip of the iceberg: http://en.wikipedia.org/wiki/Leahy-Smith_America_Invents_Act
Isn’t this a nightmare? My concern is that there is now no way for the community to stop patent trolls from patenting things that are obviously standard art, already commonly in public use, and then stop people from selling products that use that art without paying them a fee. E.g. if someone comes along and files a patent for charlie plexing LED’s, it used to be that we could say, “no, that’s in the public domain”. If it no longer matters who came up with the idea, but only who files the patent first, then how do we protect ideas in the public domain?