Nora Sleeth is a JD candidate at Osgoode Hall Law School.
On September 16, 2011, President Obama signed the America Invents Act, initiating the most significant development in American patent law since 1952. The reforms are intended to aid inventors in bringing their inventions to market with the aim of improving business and employment opportunities. The Act is a reflection of the recommendations of the President’s Council on Jobs and Competitiveness, which has endorsed patent reforms as a means of boosting the economy.
The America Invents Act is not without controversy, as two of its most significant reforms have received some degree of negative response. Firstly, the Act has changed the “first to invent” patent system to a “first to file” approach. The “first to invent” system was unique to the United States and allowed the original inventor to be the first to patent despite the existence of any subsequent inventors. The “first to file” system; however, grants the patent to the first person to apply for registration of that patent.
Critics of the “first to file” approach oppose this reform on the grounds that it generates a “race to the patent office” and discourages innovation and creativity. As a result, inventors may be drawn away from the United States. Conversely, the “first to invent” system has historically created substantial bureaucratic problems that have impeded the efficiency of patent registry. Litigation over who is actually the original inventor served as a significant obstacle for many inventors. In addition, the “first to file” approach works in conjunction with a fast track program designed to help start-ups and new businesses.
Secondly, the America Invents Act has introduced a post-grant review system that critics fear will serve as a further deterrent to litigation. Under this system, “any third party may request to cancel as unpatentable one or more claims of any patent.” All that is required by the third party is some evidence proving invalidity. Despite criticisms, this new approach presents a much cheaper and efficient alternative to litigation. It serves to prevent future conflicts that are costly and ultimately detrimental to business endeavors. Further, the post-grant review process will improve the quality of patents.
The America Invents Act has harmonized American patent law with the law in Canada and in other countries around the world. As a result, entrepreneurs can easily market their products in the States while simultaneously exporting them. The Act has made the whole process more “efficient and predictable”. Finally, the US Patent and Trademark Office is able to cooperate with other offices internationally to increase efficiency and facilitate the innovative process.