Android Phone softwareTony Avelar/The Associated Press
America's new patent law whiffs on the system's biggest flaws. The overhaul may discourage dodgy filings and square rules in the United States with those abroad. But it also puts small inventors at a disadvantage and does nothing to curb vague and overlapping patents. It's a blown chance for real reform and probably means more infringement fights for the likes of Google and Apple .
There are reasons to like the measure passed in the U.S. Senate. It makes it easier to challenge patents that cover, say, unoriginal ideas. It also puts the United States in step with the rest of the world by giving priority to the first person to file a patent application rather than the first to claim an invention.
The latter change is designed to dissuade other countries from challenging U.S. patents. But it may also mean fewer patents for small businesses and entrepreneurs, who often can't afford the legal fees and other expenses needed to file an application quickly.
After Canada switched to a first-to-file system in 1989, for example, the share of patents granted to small inventors dropped significantly, according to a new University of Pennsylvania study. That's a problem, say many critics of the new law, because individuals are fertile innovators. But others argue that small geniuses account for only about 12 per cent of current patents, and many of those have little commercial value.
The law's biggest weakness may be its omissions. The system has in many ways broken down because patents are often vague and too broad. That's largely the fault of federal patent courts, which have upheld applications for ill-defined inventions and amorphous ideas like business methods. The U.S. Congress has neglected to enact stricter standards for the courts to follow.
Businesses have paid a high price. Firms like Google can't identify all the patents that may cover, say, the Android mobile operating system, so they introduce the product first and face consequences – like getting sued by Microsoft – later. Or they arm themselves with multibillion-dollar patent portfolios for deterring lawsuits and countering infringement threats.
None of that has much to do with promoting innovation, which is the original reason for having patents. Unfortunately, after six years of wrangling over the law, Congress has still failed to put the system back on track.