Patent Tsunami Watch: The America Invents Act

Passage of the America Invents Act could trigger a tsunami of provisional patent applications.  Unfortunately, it will be Fortune 500® leviathans unleashing the flood rather than emerging tech-companies. 

Put bluntly, the first-to-file provision of the Act creates an opportunity for the leviathans to blanket the waterfront with provisional applications.  These applications will likely cover any idea that they currently have under development or that happens to be merely on their employees’ minds.  The alternative for these giants would be to run the risk that some upstart might obtain a patent adversely affecting their interests.  Since the last thing that these companies want is to flounder in the wake of an innovator, they are likely to blockade large areas of technology with provisional applications.  Then, while entrepreneurs are busy developing the technology, the leviathans will be monitoring developments and pursing regular applications with which to torpedo the entrepreneurs when the market matures.

How will such developments effect innovation?  Not well we fear.  The entrepreneurial community will have to find some way to navigate through these provisional applications and their progeny.  One way to fight back will be for entrepreneurs to file their own provisional applications as soon as doing so becomes commercially possible.  Then, as the idea matures, they can file more thorough non-provisional applications.  While good for the patent bar, the otherwise premature filings will draw resources from the entrepreneurs during the time when they need them for other activities.  Nonetheless, under the pending Act, filing provisional applications early might be the only way to avoid being sued for infringing an idea that you conceived first. 

The Villhard Patent Group has voiced our displeasure to Congress regarding the first-to-file provision.  We encourage emerging companies to do the same. 

For more information about patents and the patenting process please contact the Villhard Patent Group at (512) 897-0399 or see www.villhardpatents.com.