Mills: How to un-destroy the American Patent System
Never ever ever trust a nice sounding piece of legislation from the American Congress. One of the worst of these is the 2011, America Invents Act (AIA). The title sounds nice. Who could possibly be against such a law?
There’s one problem, this law has undermined American competitiveness despite its title. Our system was working reasonably well, but the AIA has introduced processes and procedures that allow Big Tech to wear down and ensure a patent is marginalized, and rewards “First to file” versus those who can show “First to invent”. Translation: Advantage Big Tech, innovation is stifled.
The internal Administrative “Court Process” that allows Big Tech to nullify an awarded patent must be eliminated
One feature introduced by the AIA is an internal, administrative board known as the Patent Trial and Appeal Board (PTAB) that has continually been leveraged by Big Tech, with deep pockets for their legal teams, to challenge awarded patents. Big Tech has returned time and again to use this unaccountable board to lay legal siege to the awarded patent.
The forces of Big Tech see the small innovator and the innovative service or product as a threat to their long-term viability. This administrative board acts like a legal proceeding, but there are few allowances for legal procedures for a small innovator who must spend precious time and resources responding to a Big Tech challenge to their patent.
Go back to the original spirit and intent of the constitutionally based patent system
The dysfunctional administrative board at the Patent Office is only one of the many bonus features of the 2011 America Invents Act. Patents are identified in the Constitution under Article 1, Section 8.
Our American founders had the foresight to identify the Patent System as foundational to our incredible democratic republic. Innovation in cyber and information technology has been a key advantage for America and American Companies. Allowing Big Tech to hunt down and eliminate innovative competitors was not the stated purpose of the AIA – but that is what it has become. Most legislators who supported the AIA would reverse their vote if there was clarity on the reality of what the AIA has delivered.
China adopted the American Patent System as it was, Time for Congress to make amends
To top it off, the Chinese have replicated our constitutionally based patent system and are now offering patents from China. The long-term viability and enforcement of these China based patents is wobbly and has risks, but the AIA is a detour sign that points innovators toward China and away from America.
The 2011 AIA has taken a reasonably good process and made awarded patents vulnerable to re-litigation. Innovation is the basis for economic growth and leadership. Congress must act with alacrity to correct the 2011 AIA and unleash innovators.
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Col. (Ret.) John Mills is a national security professional with service in five eras: Cold War, Peace Dividend, War on Terror, World in Chaos, and now—Great Power Competition. He is the former director of cybersecurity policy, strategy, and international affairs at the Department of Defense. Mills is a senior fellow at the Center for Security Policy. Mills is also featured in the 2022 documentary film Innovation Race: There is No Prize for Second Place.
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