by Richard
A. Epstein
This
past week, patent lawyers were feverishly preparing reams of new patent
applications to be filed under the 2011 America Invents Act (AIA), which took
effect on March 16, 2013, a year and a half after Congress passed that unwise measure. The AIA
replaced the old First-to-Invent standard with a First-Inventor-To-File
standard. To the outsider, that shift in legal rules may seem like no big deal.
But there are firms to which patent priority is worth many millions of dollars.
Under the new paradigm, firms must ensure that they “file as early and as completely as [they] can!”
Structuring
a patent system is no easy business, for it requires a delicate balance between
two competing imperatives. The first is to give inventors the incentive to
create new products; the only reliable device here is the exclusive right to
market the product for a limited period of time. The second is to ensure that
the invention is disseminated widely, which requires limiting the scope and
duration of the inventor’s monopoly. In general, the first function is more
important for it incentivizes innovation. After all, it is not possible to
widely disseminate inventions that were never made.
In
large measure, the huge political fight over the AIA (in which I participated
for my client DataTreasury on the losing side) is over the calibration of that
balance. The powerful industry coalition in favor of the AIA sought to displace
the more property-protective Patent
Act of 1952, which the AIA supporters denounced in these harsh terms:
Much-needed
reforms to our patent system are long overdue. The last major patent reform
was nearly 60 years ago. Since then, U.S. innovators have developed cell phones
and launched the Internet. And yet the laws protecting the technologies of
today are stuck in the past.
Our
outdated patent system has been a barrier to innovation, unnecessarily delaying
American inventors from marketing new products and creating jobs for American
workers. It takes over three years to get a patent approved in the U.S.
American innovators are forced to wait years before they can hire workers and
market their inventions. Meanwhile, our competitors are busy developing new
products that expand their businesses and grow their economies. . . . We need a
system that ensures patent certainty, approves good patents quickly and weeds
out bad patents effectively.
This
overheated rhetoric cannot withstand any scrutiny.
A Brief
History of Patent Law
To see
how and why the AIA will flounder, it is useful to understand the history of
patent law in the United States.
The
creation of a national patent law in the United States virtually coincides with
the founding of the country. One of the enumerated powers that the
Constitution conferred on Congress is “the power . . . To promote the Progress
of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.”














