Yesterday, the Senate continued its debate on patent reform bill S. 23. Several amendments were approved, including the authorization of three more satellite offices over the next three years, the creation of an ombudsman to assist small businesses with patenting, a requirement that the PTO prioritize examination of applications “important to the national economy competitiveness” such as green or clean energy technology, and authorization for the PTO to charge small entity fees for Track I prioritized examination.
First-to-Invent v. First-to-File
The real fight, however, seems to be looming over the provision changing the US from a first-to-invent system to a first-to-file system. Sen. Dianne Feinstein (D-CA) offered an amendment to remove the provision from the bill that would change the US system. The amendment was co-sponsored by Sens. Barbara Boxer (D-CA), Mike Crapo (R-ID), John Ensign (R-NV), James Risch (R-ID), and Majority Leader Harry Reid (D-NV). It is interesting to note that the 6 co-sponsors represent three states, all within the same geographic region.
Proponents of the first-to-invent system essentially argue that if it ain’t broke, don’t fix it. The US is an innovative leader with its first-to-invent system; there is simply no need for a change. The change would harm small inventors, start-ups, and small businesses who will be forced to file patent applications before their inventions are ready. If the change is made, the PTO will be flooded with half-baked inventions.
Judiciary Committee Chairman Patrick Leahy (D-VT) is the strongest proponent of changing to a first-to-file system. He argued that the change is necessary to eliminate confusion and inefficiency in the patent system. The change would add certainty and spur investment, thereby growing businesses and creating jobs.
Sen. Leahy has also expressed frustration with the slowness with which the Senate is proceeding on S. 23. Most others would argue that there still hasn’t been adequate input and testimony from all concerned parties. In fact, this is virtually the first time the entire Senate has debated patent reform during the latest iteration.
Debate on the bill is expected to continue today.