A patent reform bill introduced in the U.S. Senate last week is earning praise from large IT vendors, even as small inventors and some technologists say the legislation would hurt the little guys.
One of the major objections to the Patent Reform Act, introduced Friday, is that it would change the U.S. method of determining who should get a patent from the first to invent to the first to file a patent application. Sens. Orrin Hatch, a Utah Republican, and Patrick Leahy, a Vermont Democrat, introduced the bill just before the Senate left for a month-long recess.
Almost all other countries have first-to-file patent awards, but a change in the U.S. would disadvantage small inventors who often don't have the money to go through the patent process, said Ronald Riley, president of the Professional Inventors Alliance. The entire bill for fees and legal representation during a patent application costs on average about $15,000, Riley said.
Many large tech vendors "have a vision of a reformed patent system where they can take inventors' property with virtual impunity," Riley said.
"The bill would reward those who can afford to file quickly and often and would greatly lower the ability of inventors to get fair compensation when they are forced to sue disreputable companies," Riley added. "Weakening patent protection at a time when America's incredible inventiveness is the one edge we have in a low-wage global economy is incredibly poor public policy."
Microsoft Corp. and the Business Software Alliance, a trade group, both praised the Hatch-Leahy legislation, which would also revamp the way patent infringement awards are determined by requiring judges to weigh the value of the patented item to the entire product in which it's used. The bill also would create a post-patent review process as a way to challenge patents.
But unlike a similar House of Representatives bill, introduced last year by Rep. Lamar Smith, a Texas Republican, the Hatch-Leahy bill would not limit injunctions against companies found by courts to be patent infringers.
The measure provides a "pretty intelligent balancing act" toward patent reform, added Bruce Sunstein, head of the patent practice at the Bromberg & Sunstein LLP law firm in Boston.
The first-to-file provision shouldn't be a major problem for most small inventors, said Sunstein, whose firm has represented several tech companies. The initial patent filing fee can be as low as $100, while legal disputes over who was first to invent can cost $100,000 or more, he said.
In a first-to-file system, "most of the time a dispute would be handled by checking a couple of dates," Sunstein added. "I don't think it's much of a loss for small inventors, but it's a gain for simplicity in the system."
But Michael L. Love, lead developer of the open-source GNU-Darwin operating system project, also questioned the bill's first-to-file provision, which echoes a similar provision in Smith's House bill. First-to-file should be used only when the first inventor cannot be determined, Love said.
"This 'first-to-file' thing sounds like an outrage and total mockery of the meaning of the patent to me," he said in an e-mail. "Unaffiliated inventors may be shut out, and the prior art consideration could go out the window, as a patent becomes a mere paper declaration."