Is Patent Law Overdue for a Change?

By Jonathan R. Tung, Esq. on July 11, 2016 | Last updated on March 21, 2019

The patent system that was established in America back at the end of the 19th century has many notches in its belt. Under it, the cotton gin was patented as well as countless software designs. Some might argue that this is testament to its broad, flexible, and enduring nature.

However, others would say hogwash. An overwhelming number of patent filings today are software and tech related, the sorts of "patentable" material that was not in existence during the nascent years of this nation's founding. As it is, a single body of patent law presides over all sectors of patentable subject matter. Some are saying that the system is a bit long in the tooth, and costing companies time and money.

Too Slow for Reality

The laborious process of application being seen through to approval is notorious for moving at a glacial pace. "Glacial" is not a word that tech likes to hear. Fast Company estimates that the average patent wait time is around 34 months. This is worse than glacial. By the time the patent is approved, some other competitor may have already discovered the same disputed process or mechanism, thereby making a patent essentially moot. Potential patents depreciate even faster than their successful counterparts.

Hi-Tech Takes Matters Into Its Own Hands

Increasingly, companies are turning to state-level trade secret laws in order to safeguard their IP, but these have their drawbacks, too. For one, they don't protect against misappropriation or reverse engineering by competitors. And within the invention-crazed Silicon Valley, reverse engineering and independent engineering are very probable eventualities indeed.

But changes are also taking place at the federal level. The USPTO currently makes heavy use of the "Fast-Track" system to speed up the process. But in order to put this to its best use, inventors must stay on the ball to respond to communications from the USPTO rather than waiting to the 11th hour. In-House counsel would pretty much be skating the borders of malpractice these days is they did just that.

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