The U.S. Patent and Trademark Office’s (USPTO) logo of a bird (eagle) is ironic given that U.S. patent law was an “early bird catches the worm” system. For almost two centuries, the “first to invent” standard was recognized as part of the quid pro quo of the U.S Patent law system. Simply stated, if an inventor could show that she first invented something, she owned the patent in the event of a dispute. However, on September 16, 2011 President Obama signed into law the America Invents Act which establishes a “first to file” standard, observed by every other country with patent laws.

Some view the main advantage of such as law as the fact that it will decrease patent conflicts and encourage a level playing field for businesses in the US and overseas. In my view, that is positive and should create consistencies in the approach to patent law and enforcement. Several praised the legislation when it was first introduced, including the Biotechnology Industry Organization (BIO) who believed the bill would create improvements to the system and keep incentives for innovation that would ultimately lead to “high-wage, high value jobs.”

However, those opposed to the legislation claim that it favors big businesses and hurts small start-ups and entrepreneurs. This argument is well-supported by studies of the landscape of Canada’s patent law system that showed that smaller inventors were adversely impacted by the switch to a “first to file” system. In addition, the Generic Pharmaceutical Association (GPhA) raised concerns that the bill’s language “would severely weaken the current inequitable conduct standard” and make it tougher for low-cost drug companies to do business.

The White House issued a statement following the signing of the bill into law and further supported the legislation stating that it will curb costs in “unnecessary litigation” and allow companies to focus on “innovation and job creation.” In addition, the statement adds that the America Invents Act provides a means to avoid litigation in court and arms the USPTO with “new tools and resources to improve patent quality.”

Other changes to patent law that are introduced as a result of the legislation include changes to the filing process. Specifically, it allows companies to file patents on behalf of inventors who work for them, removing the burden of proof from the company and placing it on the inventor directly.

It is unclear how the Supreme Court will interpret new patent law cases, and some believe that the legislation “runs afoul” of the Constitution’s intent to give “inventors the exclusive right to their respective writing and discoveries.” Perhaps inventors will use defensive publication as a means around the patent reform. Until March 2012 when the “first to file standard” comes into effect, it remains to be seen what effect this will actually have on the US Patent law system. However, it does appear that the early bird with the ability to file quickest will get the prize and the one that invents first may simply be stuck with the “worm.”

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