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A New Patent Law

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of the ,[Exciting scene in the House of Representatives, January 31, 1865, on the announcement] of the passage of the amendment to the Constitution abolishing slavery forever., Digital ID 813691, New York Public LibraryThose who take an interest in patents will have heard by now; the U.S. has a new patent law, the "Leahy-Smith America Invents Act." It's too early to tell whether the changes that will take place as a result will be revolutionary or not; and for that I await the views of the experts. But it is worthwhile taking note of these recent patent law amendments in anticipation of the visit to SIBL by the USPTO on November 8.

Thomas Alva Edison, 1847-1931., Digital ID 95161, New York Public LibraryThe most notable change is from granting patents to the person who is "first to invent" to granting them to the person who is "first to file". Of course, this is an issue that generally only arises when more than one inventor (or group of inventors) independently comes up with the same idea at around the same time. Under the old system, when this occured the inventor who didn't receive the patent could challenge the grant to another and prevail if he or she could prove they created the invention first. The very appealing principle here was to reward originality — and treat the earlier creative act as an almost heroic basis for "winning" the patent game.

We are right to feel some nostalgia for this idea. The alternative, now adopted, has an aura of bureaucrats favoring the winner of a race to the "courthouse" steps. But Congress has spoken; the public policy decision has been made. We will have to put aside nostalgia and face the future bravely.

There are, of course, excellent reasons for making this change. The strongest motivation, and I'm going out on a limb here, has been to conform with the patent practices of most of the other developed countries in the world. Overcoming fears of rampant globalization conspiricies, there is a goal here of going forward with a more consistent approach to protecting, disclosing, and ultimately sharing, technological advances wherever in the world they are made.

There are many other features in the amendments, and it is possible that some of them may have a bigger long-term impact on patents and the patenting process. I look forward to finding some professional analytical commentary on the law, and will pass along sources once I find them. In the meantime, it will probably be a good idea to follow along on the USPTO's web pages covering the implementation of the new law.

And — don't forget to make plans to visit us here at SIBL for our Intellectual Property Day on November 8. Here's a flyer with the agenda for the day.
 

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