Gary Locke, the secretary of commerce, has urged Congress to overhaul the nation’s patent law by the end of the year. Although a bill has been circulating since 2005, a fierce fight involving the high-tech and drug industries on a technical issue — how to measure damages when a company violates a patent applying to one component of a larger product — has kept it from reaching a vote.
The best way forward is for Congress to sidestep the damages question and instead add five amendments to existing statutes that would improve the processing of patents, reduce lawsuits and speed up the arrival of innovations on the market.
The proposed amendments include:
1) Allow experts in the field to submit explanatory or critical comments on patent applications. This will help reduce litigation by debating patent validity before, rather than after granting a patent.
2) Require that all applications be made public 18 months after they are filed. This will help keep competitors from wasting resources on trying to develop the same invention.
3) Eliminate the "could have raised" clause for patent opposition. This unnecessarily limits plaintiffs ability to bring up issues in court if they first try to oppose the patent outside of court. This restriction incentivizes parties to go through expensive court cases rather than cheaper oppositions.
4) Provide limited immunity to inventors who would rather protect their ideas through trade secrets rather patents. Adding this provision would protect inventors ideas by allowing them to continue using technology they have developed without infringing even if someone else later patents the idea.
5) Adopt a "first to file" rule rather than "first to invent". The idea is that this would reduce litigation because parties who did not file first would be barred from trying to make a claim on patents.
All of these ideas, with the possible exception of #5, sound good to me. They would likely help reduce the volume of patent litigation in courts. The problem with #5 is that it may disadvantage smaller-scale inventors who are unfamiliar with the patenting process and potentially encourage even more hasty "patent races" than what we currently have today.