shouting loudly

Earlier this week, the Senate Judiciary Committee plowed forward on patent reform, passing the Patent Reform Act of 2007 by a whopping 13-5 vote.

This bill is exciting for three reasons. First, it might cut down on the number of junk patents that are filed. (See Section 6.) Right now, challenging a patent requires a very expensive and lengthy court case. If this bill becomes law, the US Patent & Trademark Office would hear challenges within one year of a filing. These kinds of administrative rulings are much cheaper than court cases–and that’s just at one level of the courts. If the patent gets junked, that’s the PTO’s final refusal, so the challenger need not fear additional court appeals.

Second, it establishes a first-to-file sort of standard rather than first-to-invent. (See Section 3.) This cuts out a lot of hard-to-prove questions, though it does escalate the exigency to file patents quickly and thus gives an advantage to those people and organizations that are already prepared to seek patents quickly.

There is a reasonable exception regarding publicly availabe information: if I, as an inventor, have discussed my new discovery in a public forum, that still counts as prior art should another person try to file it. In other words (and here’s where I remind you all that I’m not a lawyer): if you invent something and either don’t know how to file a patent or for any other reason are worried about somebody else beating you to the PTO punch, publish your findings ASAP. If you want to patent it, you’ll have 12 months to figure out how to do so.

Finally, it promises to reduce the cost of penalties for those who are found to be infringing. (See Section 5.) Those who are caught (accidentally, in many cases) infringing will only be responsible for damages proportional to the amount the patentable knowledge contributed to their product’s marketability. The tech sector, which builds devices using thousands of patentable technologies, jumped for joy over this provision. The bill also reduces the propensity for findings of willful infringement, which can triple damages.

In other words, if fears of patent liability hang over your company’s head, you should be pretty happy that this bill is moving forward.