Congressman Darrel Issa was the guest at a town hall meeting held at AMN Healthcare in San Diego when he first began pitching the America Invents Act (AIA). I was in the audience. Of those attending, less than a handful were actual inventors. Many were attorneys, but most were socialites following the man who donated $2 million in 2003 to recall Governor Gray Davis in an attempt to replace him. (Arnold Schwarzenegger was elected instead). Few in the crowd had any understanding of the damaging consequences of the America Invents Act.
I am professionally a new product developer and the named inventor on 14 issued patents. I have spent decades inventing and helping hundreds of inventors and startups. All that was needed to protect IP at the earliest stages was to keep an accurate notebook documenting, illustrating, signing and witnessing the process of developing an idea into an invention. This 200 plus year old method was tried and true. I was taught this method when I was an engineer and taught it to engineers that I hired at my business. Their properly documented Laboratory Notebooks became valuable intangible assets. There was no need to change it!
Before the America Invents Act, an inventor’s idea was developed into a proof of concept and business models were vetted for the probability of commercial success at a minimal cost. To refine an idea into a commercially viable invention, inventors must disclose an invention to neighbors, relatives, friends and other early stage investors as well as multiple vendors, prototypers, suppliers, and others. The inventor was free to do this prior to the AIA because there was a 12 month grace period to file for a patent.
This grace period saved thousands of dollars of upfront costs because a patent did not need to be filed until after the idea was fully refined and determined to be commercially viable. After all, if the idea can’t be produced at a profit or if buyers will never buy it, why patent it? No small inventor can justify spending thousands of dollars on an idea with no way to know if it will ever bring a profit.
But that is what the America Invents Act has forced inventors to do.
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(This article first appeared in IPwatchdog)