By David E. Boundy and Matthew J. Marquardt
The Patent Reform Act of 2010 proposes to redefine the deadline for filing patent applications. Where today's law gives an inventor a "grace period" to test the invention, seek financing and assemble necessary strategic partners before bearing the cost of beginning the patent process, the Patent Reform Act changes the law so that all public disclosures (public use, offers for sale, publications and the like) would become bars to a patent, except those disclosures that the inventor can prove originated "directly or indirectly" with the inventor. However, proving the flow path for an idea is one of the most difficult showings in the law, and the Patent Reform Act omits any process for an inventor to obtain information to support the necessary proof. The theoretical grace period is procedurally inaccessible.
The internal contradiction in the Patent Reform Act removes low-cost options for businesses, and forces them to follow higher-cost processes. The Act will force companies to file more patent applications, earlier in the development cycle. This will prohibitively increase patent and business transaction costs for small companies, university spin-offs, and startups, and place them at a substantial disadvantage to international companies and market incumbents. Data from Canada and Europe confirm our fears.
This radical and disruptive provision of the Patent Reform Act should be removed or replaced with a narrowly-tailored alternative.
Download the full text to learn more about the potential consequences of patent reform's weakened grace period