Patent reform: Can preissuance submissions help?

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While almost no one thinks that the America Invents Act (AIA) will completely solve America’s patent problems, there are a few provisions in the AIA that may be useful tools in limiting and/or preventing bad patents. One of these tools is the newly implemented Preissuance Submission procedure, which went into effect on September 16, 2012. This procedure allows third parties to participate in the patent application process by providing prior art, which can then be used by a patent examiner to determine whether a patent application lacks novelty or is otherwise obvious. The Electronic Frontier Foundation has now seized upon the new procedure to organize a project to identify pending applications related to 3D printing and then seek out relevant prior art for submission.

Precedent for this Preissuance Submission procedure dates back to 2007 when the U.S. Patent and Trademark Office (USPTO) announced a pilot program called Peer To Patent, which invited volunteers to submit a limited number of patent applications in specific technology areas (Computer Architecture, Software, Information Security, and later Business Methods) for public community review. Based on feedback and analysis of the initial pilot, the general consensus has been an acknowledgement that community participation is good for the patent system.

Under the new Preissuance Submission procedure, anyone has standing to submit documents to the USPTO that relate to published patent applications (there are no technology area restrictions). Relevant prior art documents are most likely to be in the form of patents and/or published patent applications, but the new rules allow for the submission of any printed publication that pre-dates the patent application in question. As part of the procedure, submitted documents are required to be accompanied by a concise description of the asserted relevance of each submitted document.

In true open source fashion, I can imagine targeted community projects – similar to the EFF project for 3D printing – being built around specific technology areas of relevance to the open source community. In fact, I can hardly think of anybody in a better position than the open source community to mobilize on something like this.

Any ideas?  

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Jared Engstrom
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Jared Engstrom is senior patent counsel at Red Hat, where he runs the internal patent development program. Prior to joining Red Hat, he was a patent counsel at Hewlett-Packard; he also spent several years as a patent attorney at the law firm of Blakely Sokoloff Taylor & Zafman. Jared graduated from Brigham Young University with a degree in Electrical and Computer Engineering.
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3 Comments

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Shawn H Corey | November 5, 2012
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"...there are a few provisions in the AIA that may be useful tools in limiting and/or preventing bad patents."

May be? That means none. This sounds more like a sop to quiet complainers than anything useful. And it sounds as effective as a screen door on an airlock. The best way to get rid of America's patent problems is to get rid of patents completely.

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Unidentified | November 8, 2012
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Doesn't America Invents do away with the prior art provisions of patent law?

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Steven Lee | January 5, 2013
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Senator Cantwell is right. Just because they call it “reform” doesn’t mean it is. The agents of banks, huge multinationals, and China are at it again trying to brain wash and bankrupt America.

They should have called the bill the America STOPS Inventing Act or ASIA, because that’s where it is sending all our jobs.

The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??

Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and destroying their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. The bill will make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. In this way large firms are able to play king of the hill and keep their small competitors from reaching the top as they have. Yet small entities create the lion’s share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale destroyer of US jobs. Those wishing to help fight this bill should contact us as below.

Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Congress tinkering with patent law while gagging inventors is like a surgeon operating before examining the patient.

Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

Steven @ http://www.bluepelicanloans.com/

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