In his speech before Congress Thursday night, President Obama said, “Today you [the Congress] passed reform that will speed up the outdated patent process, so that entrepreneurs can turn a new idea into a new business as quickly as possible.”

Sounds good, but is the patent reform bill really all that?

Certainly the bill is remarkable for having bipartisan support in such a polarized Congress. It passed the House 304-117, and the Senate 89-9. (Though not all politicians were on board. The Associated Press quotes Senator Maria Cantwell as saying, “This is not a patent reform bill. This is a big corporation patent giveaway that tramples on the rights of small inventors.”)

I’ve been reaching out to patent attorneys I respect to ask them for reactions. Not for definitive analysis, but for their initial takes on the political hyperbole about the reforms, now that the bill is on the way to becoming law.

Micah Stolowitz, a patent attorney at Stolowitz Ford Cowger, pointed me to an excellent patent law blog, Patently-O, and the posted results of a survey of 1161 “intellectual property professionals” that the blog recently undertook. Dennis Crouch writes in this post, “Although some responses showed support for the legislation, the weight of responses opposed the reforms, and the median response opposed the Bill.”

What about the President’s assertion that the bill will help entrepreneurs turn new ideas into businesses more efficiently?

The Patently-O survey specifically addressed that topic. The question was put this way: “Do you agree that the proposed patent reforms will cut the red tape that stops too many inventors and entrepreneurs from quickly turning new ideas into thriving businesses?” Here the professionals taking the survey were more decisive: 44% strongly disagreed, 36% disagreed, and only about 5% either agreed or strongly agreed. (See the Patently-O survey result post for the results in graph form.)

Micah himself expressed this view: “I do not believe that the legislation will reduce ‘red tape’ that impedes Americans from turning new ideas into successful businesses.”

[Editor’s Note: Here’s the video of Obama’s speech, fast-forwarded to his comments on patent reform.]

Attorney William Carleton is a member of McNaul Ebel Nawrot & Helgren PLLC, a Seattle law firm. He works with startups and emerging tech companies, their founders and investors.

He posts regularly about tech-related legal issues on his blog.

Also By William Carleton

Comments

  • Peter H

    It is astonishing that this bill will pass.

    The “first to file” rule means that if I realize that no one has patented toast yet, and I file my patent, then soon I will own the IP around toast.  I don’t have to prove that I am the one who inveted toast.  This will make the patent system — which is already totally broken for software — into even more of a bothersome instituion for all business.

    Imagine the delight of patent trolls like Nathan M. when they discover they don’t have to even invent anything – just scan for anything not patented, and file a patent on it. 

    How is this possibly a benefit?  Even as bad as politics are today, how can this possibly pass?

  • Peter H

    It is astonishing that this bill will pass.

    The “first to file” rule means that if I realize that no one has patented toast yet, and I file my patent, then soon I will own the IP around toast.  I don’t have to prove that I am the one who inveted toast.  This will make the patent system — which is already totally broken for software — into even more of a bothersome instituion for all business.

    Imagine the delight of patent trolls like Nathan M. when they discover they don’t have to even invent anything – just scan for anything not patented, and file a patent on it. 

    How is this possibly a benefit?  Even as bad as politics are today, how can this possibly pass?

    • Asok

      Not true at all. Under both the past and present (new) system, toast cannot be patented due to the existence of prior art.

      You bring up a good point about software/ideas being patentable, and that being a bad idea. However, that’s an orthogonal issue to “first to file” vs “first to invent”.

      • Chris D.

        Well, not exactly true either. Patent number 6080436 dated June 27, 2000   does exactly this. It’s called a “bread refreshing method” but it’s really just a way to make toast.

        • Asok

          Well, I would argue that that patent was erroneously issued then. If the patent owner actually tried to press a claim, prior art could be cited (in both systems) to invalidate it. The new system does not make the patent officers infallible (nor did the old one).

    • Asok

      Not true at all. Under both the past and present (new) system, toast cannot be patented due to the existence of prior art.

      You bring up a good point about software/ideas being patentable, and that being a bad idea. However, that’s an orthogonal issue to “first to file” vs “first to invent”.

  • Peter H

    It is astonishing that this bill will pass.

    The “first to file” rule means that if I realize that no one has patented toast yet, and I file my patent, then soon I will own the IP around toast.  I don’t have to prove that I am the one who inveted toast.  This will make the patent system — which is already totally broken for software — into even more of a bothersome instituion for all business.

    Imagine the delight of patent trolls like Nathan M. when they discover they don’t have to even invent anything – just scan for anything not patented, and file a patent on it. 

    How is this possibly a benefit?  Even as bad as politics are today, how can this possibly pass?

  • http://twitter.com/ArcComputer david prokop

    The patent reform will not sweep away all the problems with the system, however it makes some great progress in a few areas. 
    1) “First to File” means patents need to be submitted early, no longer can you bring an inventors notebook into court and ‘swear (behind)’ you thought of an invention first.

    2) Limits on litigation discovery, this will reduce the cost of patent litigation cases where defending lawyers would take discovery from as many people as possible, increasing time and costs into the millions.

    3) Stopping the heinous practice of ex-parte and inter-partes reexamination of issued patents. It costs a couple thousand dollars to request reexamination, and it costs the patentee at least $100k and 5 years to go through patent prosecution again. This has been a terrible burden for patentees to continually defend their patents (multiple reexaminations can be requested).

    patent-o blog has a lot more info on this topic, the patent Reform Act isn’t perfect, but it goes a long way to stopping sleezy lawyer tricks.

  • Margie Aoki

    I think that the Patent Reform Act makes certain improvements to the quality of our patent system; however, I do not think that it necessarily reduces the “red tape.”  Some tools may be very useful in producing high quality patents, such as the ability for third parties to submit documents to the Patent Office during the pendency of a patent application with an explanation as to the relevance of the document.  This could be a very helpful tool if used appropriately.  But if abused, it could slow the process down even further.

Job Listings on GeekWork