Microsoft wants a new version of the U.S. patent system. On March 10, 2005, at the American Enterprise Institute for Public Policy Research, Microsoft General Counsel Brad Smith proposed several changes to the current U.S. patent system.
Among the proposed changes are:
Patent fees stay in the patent office — Because patent fees are diverted to other governmental uses, the patent system suffers and fees no longer have any connection to the cost of examining and issuing patents. Keeping the fees in the patent office would fund more and better-qualified examiners plus the infrastructure needed to competently examine patent applications
Third parties able to submit “prior art” during examination — If interested third parties could submit “prior art” before a patent issues, the patents that ultimately issue would be that much stronger. Some patents would never issue (and never should).
Post grant administrative challenge procedure — Allowing administrative challenges to patents after granting could short-circuit expensive patent litigation.
Single patent trial court — The Court of Appeals for the Federal Circuit hears all patent appeals, eliminating forum shopping and regional variances in patent law interpretation. Having a single District Court to try all patent case would result in expert patent judges at the trial level and minimize uncertainty.
“Willful infringement” redefined to egregious behavior — Those who willfully infringe can be liable to pay treble damages, that is, three times as much. The current system rewards those who are intentionally ignorant about others’ patents.
First-to-file system — Currently, if two inventors file for patent protection on the same invention, the patent is issued to the inventor who invented first, not who filed for protection first. Changing to first-to-file would simplify the process and bring the U.S. in line with the majority of other countries.
No filing fee for “small entity” inventors — Those who can show “small entity” status have their patent fees cut in half. Microsoft proposes eliminating the filing fees (though apparently not any other patent-related fees). Not only would this make the patent system more accessible to individual inventors, but would also increase the patent office’s files of prior art. Individual inventors willing (reckless enough?) to write their own patent applications would have virtually no barrier to filing applications.
Microsoft isn’t the first to propose these changes. Some of the proposals have been resisted before being perceived as favoring large corporations at the expense of individual inventors. Eliminating filing fees might tip the balance.