An article Politicians and Pundits Make Some Noise About Patent Reform explains that the Senate is set to vote on the America Invents Act (which passed in the House by a vote of 304-107 in June), the first major revision of American patent law in more than 60 years. In March of this year, the Senate approved its version of the Patent Reform Act by a vote of 95-5. With few differences, the bills alter a wide range of current law and practices before the U.S. Patent and Trademark Office (USPTO) including a change in fundamental entitlement to a patent to a “first to file” system; codified limitations on potential recoverable damages for infringement and the procedure in which such damages must be assessed; codification of the requirements for establishing willful infringement; and new restrictions on the venue in which patent infringement actions may be filed.
Until now, the US has maintained an inventor-friendly patent system to favor whoever files for an application first. The proposed legislation changes US law from a patent system favoring the first-to-invent to one favoring first-to-file. This change is an attempt to harmonize U.S. law with the rest of the world by doing away with the granting of a patent to the first inventor. In March, Senator Diane Feinstein unsuccessfully introduced an amendment to the Patent Reform Act of 2011 to preserve the current first to invent process, protect small inventors and help preserve America’s patent leadership. Her remarks which conclude by saying “If it ain’t broke, don’t fix it.” are here.
For more on the pending legislation, see the Congressional Research Service Report Patent Reform in the 112th Congress: Innovation Issues and the authoritative insider’s perspective on the benefits and drawbacks of proposed U.S. patent reforms Understanding Patent Reform Implications: Leading Lawyers on Defining Key Issues, Interpreting Current Proposed Legislation, and Projecting Future Developments (Call #KF3114 .U534 2009) available at the Brooklyn Law School Library.