Although it has some good elements, the America Invents Act (AIA) undercuts the individual inventor the U.S. patent system was designed to protect.
The concept of granting patents to inventors for their innovations was written into the U.S. Constitution by the founding fathers. It grants Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The founders realized the importance to a young nation of sharing innovations in exchange for a limited monopoly so an inventor’s work can serve the general good. At the time, there were no major corporations around seeking to control innovation. The well spring of innovation which fueled the nation’s growth came primarily from independent inventors such as Ben Franklin (bifocals, etc.), Eli Whitney, (the cotton gin), John Cabot Lowell (the power loom), Robert Fulton (the steamboat) and many others.
The AIA has unfortunately creating a situation where the independent inventor and small enterprise with limited resources must do battle with large corporations with deep pockets. Big companies routinely ignore independent inventors and smaller companies when they attempt to assert and enforce their patents. Lobbyists for large corporations have successfully robbed the independent inventor and small companies of their incentive to bring their ideas to market.
The largest corporations in America used the original patent system as a ladder to climb to their present success. With the AIA’s reforms, they have now substantially pulled that ladder up behind them to assure that young upstart individuals and companies cannot use patents for future successes of their own.
Many elements to the AIA undercut individual inventors and small entities. Perhaps the most onerous is the adoption of the first-to-file provision. Granted it was an attempt to fall in line with practices in the rest of the world, but it does a great disservice to the individual inventor.
Under the AIA, a large company can patent an idea documented by an independent inventor at an earlier time simply by filing for such a patent ahead of the inventor, whether or not they were first to conceive of the idea. A battle of log books used to decide who should receive a patent for an innovation, now it is more a battle of checkbooks.
Obtaining patents is expensive, but their cost pales beside the cost of enforcing them, especially under the post grant review process aka inter partes review or IPR defined in the legislation. The IPR allows any party to request the patent office review an issued patent previously determined valid through an examination by the Patent Trial and Appeal Board (PTAB) at the very same patent office.
The petitioner essentially tries to get the patent office to admit that it made a mistake in order to expeditiously invalidate a patent. The process bypasses the court system where a jury would decide the issue. It is a legal loophole of a sort that has a crushing effect on independent inventors, causing them to give up in the face of overwhelming odds.
Since the new process started, nearly 80% of patents reviewed have been invalidated, according to one source. The PTAB is effectively becoming a rubber stamp for deep pocketed IPR petitioners.
Inequity was written into the AIA to favor the already wealthy corporations that underwrote the bill’s financing to the detriment of the intent of the constitution’s authors, the nation and its people. The good news is that it is never too late to mend a bad or misguided law.
--Joseph Fjelstad is a 45-year electronics industry veteran, serial entrepreneur, author and named inventor on more than 180 U.S. patents. He can be reached at firstname.lastname@example.org