Colossal change to U.S. Patent system nears with today's 'America Invents' vote

The United States Senate is scheduled to vote on House Resolution 1249 at 4:00pm today; the bill also known as the "America Invents Act," which will begin a major overhaul to the US Patent System.

In a Senatorial debate last night, a bipartisan majority voted to invoke cloture on the motion to proceed, or in other words, to summarily end the debate and move along to the voting stage.

UPDATE: H.R. 1249 passed the Senate in an 89-9 vote. The bill will next have to be signed by the President and it will become a law.

The bill (H.R. 1249) was approved by the House of Representatives in late June 2011.

In a statement Wednesday evening, Senator Patrick Leahy (D-Vt), the bill's sponsor, said "The America Invents Act is bipartisan legislation that will lead to long-needed improvements in our patent laws and system. No one Senator, industry or interest group got everything it wanted in this bill. But that is the nature of compromise, and this bill represents a significant step forward in preparing the patent office, and in turn businesses, to deal with the challenges of the 21st Century. Support for the bill has grown over time and it is now endorsed by an extensive list of supporters."

Supporters included prominent tech companies such as Microsoft which expressed its support for the Act earlier this week.

Microsoft Corporate Vice President and Deputy General Counsel Horacio Gutierrez said three areas of the bill will "ensure that innovators in our troubled economy can benefit from a predictable and rational patent system."

These include:

-Increasing funding for the US Patent and Trademark Office through new and revised patent fees (including an "electronic filing incentive" which adds a $400 fee for people who do not file patents through electronic means.)

-Changing the U.S. from a "first to invent" system to a “first to file” system.

-Increasing the amount of administration and review over already-granted patents, "to help eliminate questionable patents."

But not everyone believes this law will help.

Lewis Lee of patent law firm Lee & Hayes, and founder of IP Street said, "China has made bold moves in the past few years to overtake the U.S. on every innovation measure before the decade is out, and just this year surpassed the U.S. on the number of patent filings. The legislation will not help the U.S. overcome the China challenge, and only marginally addresses some longstanding issues like patent office funding. If the PTO can truly reinvest all of the fees it charges filers then the net effect should be a patent system that is more agile and scalable."

One of the most controversial aspects of the bill is its fundamental restructuring of the Patent system from its traditional "first to invent" system (first to actually produce an item or system that the patent reflects) to one that uses a "first to file" system (first to patent an idea before actually physically inventing it.)

The Bill says, "It is the sense of the Congress that converting the United States patent system from 'first to invent' to a system of 'first inventor to file' will promote the progress of science and the useful arts by securing for limited times to inventors the exclusive rights to their discoveries and provide inventors with greater certainty regarding the scope of protection provided by the grant of exclusive rights to their discoveries."

The United States will be the last country in the world to give up its "first to invent" patent system, and the adoption of "first to file" would bring the country in line with the rest of the world. Opponents, however, believe that a "first to file" system would trigger a huge rush in patent applications, which could deepen the Patent Office backlog and result in a spike in weak patents that are used in frivolous lawsuits.

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