Contrary to what most people assume, a patent does not give the owner of the patent the right to use the patented invention. In fact, the exact opposite is true! A patent gives the owner of the patent the right to exclude others from making, using, selling or offering for sale a product or service that uses the patented invention. Patent owners typically charge a royalty to businesses that use (or “practice”) the patented invention and this arrangement as known as “licensing.”
What makes a patent useful to society is that it is available to the public. Today, access to patents is easier than ever thanks to the Internet, but prior to the on-line access we have today, the Department of Commerce set up Patent Libraries across the U.S. These Patent Libraries included Search Indices so people could locate patents that applied to certain technologies or applications. Anybody can write to the Patent Office and order a copy of any patent for a modest fee.
Making patents available to the public enables each generation of inventor and innovator to build on the last generation of patents. The weakness of this same system, however, is that it makes patent infringement relatively easy. A business can easily use an inventor’s patent, and it is up to the patent owner to locate and identify the patent infringers. Patent infringement is not a crime, so there are no “Patent Police.” It is up to the patent owner to pursue justice and compensation for infringement of his (or her or its) patent through civil litigation.
As a result, patent reform must include strengthening the patent system by building in protection for patent owners. Patent reform should also include making sure that patent owners are properly compensated by the infringers when patent infringement occurs. And patent reform should include making sure that the actual discoverers of inventions receive patents for them.
Unfortunately, the America Invents Act – which AIPR and many other industry and inventor groups opposed – passed Congress and was signed into law in September, 2011. It included a change from the existing first-to-invent patent system to a first-to-file regime. That means that the first person to file a patent application for an invention gets the patent – even though that might not necessarily be the original inventor. Clearly, this change in the patent system gives an advantage to larger businesses that have the deep pockets and IP staff necessary to draft and file large numbers of patent applications.
Moreover, the America Invents Act left out items of patent reform that would have been beneficial for both the Patent Office and innovators – such as fully funding the Patent Office or establishing a multi-tier, 21st Century patent system, both of which would help reduce the current backlog of almost 700,000 patent applications while ensuring that each invention is granted the appropriate amount of protection.
Please visit our What You Can Do page for ways to advocate for patent reform that can actually strengthen our nation's patent system.