By Anthony S. Volpe
Special to the Legal
The initial driver for the America Invents Act was to create a stimulus for the American knowledge industry, create jobs and reaffirm American leadership in technology. The Judiciary Committee described the AIA purpose as follows:
Background on H.R. 1249, the America Invents Act: On September 16, President Obama signed into law the Leahy-Smith America Invents Act (H.R. 1249), a bipartisan, bicameral bill that updates our patent system to encourage innovation, job creation and economic growth. Both Houses of Congress overwhelmingly supported the proposal, which was sponsored by House Judiciary Committee Chairman Lamar Smith (R-Texas). The House of Representatives passed H.R. 1249 by a vote of 304-117 earlier this year. The Senate passed the bill by a vote of 89-9. Senator Patrick Leahy (D-Vermont) partnered with Chairman Smith on the legislation. Congressman Smith led the House efforts on patent reform for more than six years.
Much-needed reforms to our patent system are long overdue. The last major patent re-form was nearly 60 years ago. Since then, U.S. innovators have developed cell phones and launched the Internet. And yet the laws protecting the technologies of today are stuck in the past.
Our outdated patent system has been a barrier to innovation, unnecessarily delaying American inventors from marketing new products and creating jobs for American workers. It takes over three years to get a patent approved in the U.S. American innovators are forced to wait years before they can hire workers and market their inventions. Meanwhile, our competitors are busy developing new products that expand their businesses and grow their economies. This year, for the first time, China is expected to become the world’s number one patent publisher, surpassing the U.S. and Japan in the total and basic number of patents. We cannot expect America’s innovators and job creators to keep pace with the global marketplace with the patent system of the past. We need a system that ensures patent certainty, approves good patents quickly and weeds out bad patents effectively.
The Leahy-Smith America Invents Act is one of the most significant job creation bills enacted by Congress this year. The Act implements a first-inventor-to-file standard for patent approval, creates a post-grant review system to weed out bad patents, and helps the Patent and Trademark Office (PTO) address the backlog of patent applications. The enactment of H.R. 1249 is a victory for America’s innovators and job creators who rely on our patent system to develop new products and grow their businesses. The America Invents Act brings our patent system into the 21st century, reducing frivolous litigation while creating a more efficient process for the approval of patents. These reforms will help the innovators and job creators of today launch the products and businesses of tomorrow.
Congress acted on this legislation under the premise that our patent system was the cause of the lagging U.S economy. Now, the United States Patent and Trademark Office is dealing with the task of establishing regulations and practices to implement the new law. Considering the time it will take for the USPTO to establish them and the time for industry and the legal profession to sort them out and create a working environment, there remain real questions about whether the AIA can or will do anything to improve job creation or economic growth.
In the fight leading up to passage of the AIA, the warring sides were largely made up of multinational companies fighting over what provisions were best for them. There was little to truly address the domestic issues of job creation or economic growth.
Consider the following: The USPTO has an impressive display of many patents issued to Apple’s Steve Jobs – an impressive display that reflects brilliance, if not genius. However, the truth is Apple is not an engine of economic growth or the creator of jobs that are needed domestically. While Apple’s stock price tops $500 and it becomes the most valuable enterprise, its products are made in China and very few, if any, of the lower tech manufacturing jobs needed for domestic growth are available in this country.
Apple cannot be faulted for following the business model that the market demands. However, it is but one example of why patents are not and are not likely to be the engines Congress hopes for. Moreover, the number of U.S. patents granted to foreign nationals is increasing quickly. An effort to reverse that trend will require long-term rather that short-term fixes and lofty goals in the Congressional Record. Ultimately, the task of creating jobs will fall to the educational systems that train the next generations and governmental policies that encourage domestic investment over short-term returns.
Anthony S. Volpe, a shareholder at Volpe & Koenig, has corporate and private practice experience in securing, licensing and enforcing all aspects of intellectual property rights. His patent work includes appeals before the USPTO Board of Patent Appeals and interferences and international trade commission, prosecution of patent applications, rendering opinions regarding patentability and enforcement of patent rights.