New patent legislation will improve innovation process

by Keith Nunes
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Lost amid the ongoing debate in Washington over job creation and deficit reduction was the signing of the “America Invents Act” by President Obama on Sept. 16. The new law is a positive step forward to improve the patent application and approval process, a system that has been bogged down in bureaucracy and overwhelmed by the rising volume of patent applications in recent years. While a few sectors of the business community, most notably small business owners, have expressed concerns about the new statute, its enactment marks the most significant change in patent law since the 1950s.

The food and beverage industry is at a critical juncture where innovation and speed to market are significant factors for corporate success. The new law will help manufacturers and suppliers move new ideas into the product development pipeline more rapidly and with the potential to reap the benefits more quickly.

The patent legislation contains several components designed to improve the application process, most notably a fast-track option for a patent review within 12 months. Instead of an average wait of almost three years the U.S. Patent and Trademark Office will, for an additional fee, be able to offer applicants an expedited process that has a guaranteed 12-month turnaround
time frame.

The legislation also reshapes the patent application process to make it more compatible with patent application systems in other countries. For multi-national companies interested in extending the reach of their intellectual property, this can only be a welcome change.

Under the act, the United States will move away from the traditional first-to-invent standard to the first-inventor-to-file standard. Under the first-to-invent standard the process was easily vulnerable to becoming slowed by disputes over identifying a technology’s original inventor. The first-inventor-to-file standard reshapes the process to reduce the number of challenges and provides an incentive for inventors to bring their ideas forward in published applications in a timely fashion.

With recognition that disputed applications will continue as part of the system, the new law also creates a dispute resolution process that may be handled by the Patent and Trademark Office rather than the courts. Prior to the law’s enactment, the only recourse for challenging a patent application was through the federal courts, which could significantly delay the process.

The Patent and Trademark Office also has re-written its quality management processes to increase the quality of the examinations and has issued guidelines that clarify and tighten its standards for the issuance of patents. Such needed clarity will hopefully ensure a reduction in confusion once a patent is approved.

Finally, the new law will allow the director of the Patent and Trademark Office to set the agency’s fees with an eye toward reinvesting the monies to further improve the patent application and approval process through the hiring of more application examiners and acquisition of better technology to improve the quality and speed of the process.

Small business owners have argued that the new legislation is unfairly designed to benefit large corporations. But several aspects of the new law benefit small business entrepreneurs. For example, the act allows for the filing of provisional applications that serve as placeholders for 12 months and will allow smaller companies more time to fully develop a patent application. The new law also creates a “microentity” status that provides a 75% discount on the fees and is intended to help individual inventors.

In the areas of ingredient technology, food safety, packaging and processing as well as emerging technologies such as nano-materials, this new law promises untold benefits for food and beverage manufacturers as well as the industry’s suppliers. It is especially important, because new processes and technologies are the lifeblood of growth within the food marketplace.
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