The new law totally rewrites and sells

The new law totally rewrites and sells-off our patent system. There are six key points.

First is to shorten the term of U.S. patents. This damage was done in 1994, and we’ve not been able to repair it. In the past, administrative delays were buffered by the fact that patent term was 17 years after issue. Term is now a shorter 20 years after filing. For example, if the PTO takes 19 years to issue your patent due to bureaucratic delays, your term is just one year.

Second is to publish most patent applications 18 months after filing. This gives your detailed trade secrets to your competition before you have a patent to protect them. In the past, patent filings were secret unless and until a patent issued.

Third is that even before your patent is granted, anyone, including your competitors, can oppose (after they have read your filings and claims!) your pending patent, thereby causing additional delays that shorten the term of your patent. (See point one.) This "reexamination" is new and unique, and more than one firm can oppose your patents.

You potentially lose four ways: 1) Any delays caused by reexamination will come out of your patent term, 2) You will have to bear all the legal costs of litigation with third party attorneys, 3) The adverse economics invites legalized extortion. It may cause you to just give up -- due to the expense, risk, and the reduced value of your long-delayed patents, 4) Even if you do choose to run the reexamination gauntlet, you may not prevail.

Fourth is that huge firms can focus the full fury of their litigation attorneys against you to oppose your patent in the Patent Office. (See point three.) In the past, hearings were private matters between you and the patent office. Competitors can also, after having read your application, "cluster" filings of their own to surround your patent, even before it is granted. If you then try to build and market your invention, you will, therefore, be at a disadvantage. Also, while your patent is being disputed under reexamination, it is not practical to assert it. You will be deprived of income at a time when your expenses are high.

Fifth is that improper influence is invited, and accountability removed. Parts of the new bills appear to make the PTO a private entity. Oversight and accountability is therefore removed, and the PTO is moved into a twilight zone where Federal Government Anti-Corruption law does not apply. Parts definitely allow PTO functions to be moved offshore [contracted to foreign corporations, governments, or non-governmental agencies (NGAs)] and may legalize [foreign] gifts and donations to the PTO.

One consequence is the recent flood of "junk patents," as the PTO commissioner can now do just about anything he wishes. Junk patents are onerous to all but the largest firms, since the courts presume patents are valid. Most companies decline to challenge junk patents, since the investment required is many years of work and $1.5 million on average, and the probability of success at overturning a patent is low.

Sixth is even if you do manage to get a patent, it may be meaningless because "third parties" who (claim to have) used the invention before your patent was issued will be allowed a royalty-free license. If you dispute that, the burden of proof is on you. You will suffer more legal expenses. In that case, it is possible that the competition may have your attorneys running all over the world to take depositions, review foreign documents in foreign languages, and take evidence under foreign legal systems.

The details are endless. Reexamination can continue even after you get a patent, just by paying fees to the patent office. Prior rights will accrue to anyone in the world who has used your invention first. Perjurious witnesses will be prosecuted (or not) under the laws of the foreign country which will receive free use of the patent if prior user rights are obtained.

Important Note: The above points are opinion, and not everyone agrees. Ron Brown's genius was to use patent law to shape economic policy. Therefore, patent law has been politicized and truth is now elusive. The honest truth is that no one, including your patent attorney, really knows the consequences of this total rewrite of U.S. patent law.

This legislation is a masterpiece of obfuscation and ambiguity. Many think that it will take years or decades of litigation before the courts sort it out. Others expect an endless sequence of "technical correction" bills to attempt to fix this ill-advised legislation. That has already started, and the sequence of bills with no more content than "strike this" and "add that" adds to the confusion. If you disagree with my conclusions, please feel free to draw your own. The bills themselves are a matter of public record and are posted on the Internet.

In the end, it will probably take a Supreme Court ruling before we are certain of all the implications and consequences of the new law. That is one reason why the Nobel laureates wanted a full and deep debate on this legislation. Unfortunately, that debate never happened.

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