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Changes on the Horizon for U.S. Patent Law?

By Wendy Marsh

Senate Judiciary Chairman Patrick Leahy (D-Vt) and his House counterpart, Texas Republican Lamar Smith, are proposing substantial changes to the patent laws, including a change from the current U.S. "first to invent" to a "first to file" system.  Besides providing U.S. "harmonization" with the majority of the other industrialized countries which follow the "first to file" system, another reason for this proposed change is to remove the need for the lengthy, costly process the U.S. Patent Office and Trademark Office (USPTO) must now use to determine which patent applicant was the first inventor of a particular technology.  Under a "first to file" system, the first person to file a patent application on a particular technology would be deemed the inventor. 

In addition to changing from a "first to invent" system to a "first to file" system, Leahy's bill proposes a new administrative mechanism for third parties to challenge the validity of patents, as well as an alteration to the method for calculating damages in patent infringement litigation.

 On Feb. 1,  more than 20 conservative organizations and activists released an official letter urging congressional leaders to prevent passage of the Leahy bill, arguing it will cripple most of America's small inventors, universities, and larger industrial firms that rely upon patents by downgrading their patent rights.  More particularly, the group states that the bill will make it easier to infringe patents, easier to challenge patent rights, and more expensive for inventors to defend their patents. To promote innovation, the conservative groups instead urge that the logical solution is to reduce the Patent Office backlog by allowing the USPTO to retain its user fees instead of allowing those fees to be diverted to other parts of the government.  In this regard, the groups note that in recent years, approximately $700 million originally allocated to the USPTO has been used for general government spending, resulting in a backlog of approximately 720,000 patent applications.

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