Patent Reform: Tuning Up America's Innovation Engine

Economic progress—for our country, our institutions, and ourselves—is most consistently generated by innovation. As our nation’s leaders focus on jobs and economic recovery, legislative action is under way to “tune up” the engine of America’s entrepreneurial culture: our country’s patent system. Over 200 years ago, the framers of our Constitution recognized the importance of patents, granting Congress the power “To promote the progress of science … by securing for limited times to … inventors the exclusive right to their respective … discoveries.” Today, patents are more critical than ever; the title of a recent Commerce Department white paper says it all: “Patent Reform: Unleashing Innovation, Promoting Economic Growth & Producing High-Paying Jobs.”

Society gains when an invention is shared rather than kept secret, advancing science as it becomes part of an ever-growing state of the art. Patents drive our country’s innovation engine by permitting inventors to profit through temporary exclusivity on their inventions. Many chemists and chemical engineers are proud inventors who have made tremendous contributions to society through inventions that have created new fuels, food products, clothing, and life-saving medicines.

As part of its responsibilities, the ACS Committee on Patents & Related Matters (CPRM) advises ACS on legislative matters regarding patents that impact the chemical enterprise. (As an aside, I should note that this responsibility is directly aligned with Goal 5 of the ACS Strategic Plan, which provides that ACS will be a premier advocacy organization for members of the profession.)

The patent system has worked well—incentivizing investment, advancing society, and even helping create entire new industries. However, patent law needs reform. The increasingly global nature of innovation work requires stronger harmonization to work effectively in a global economy, and patent reform is emerging as a national priority to strengthen our economic recovery. CPRM has tackled this challenge and has identified changes that both improve the system and achieve harmonization, balancing the needs of the entire chemical enterprise—industry, academic researchers, and individual inventors. The ACS Board of Directors adopted CPRM’s proposal as an ACS Position Statement. (All ACS Position Statements are accessible on ACS’s website under the Policy tab.)

As patent reform moves forward through Congress, ACS’s core positions are the following:

End Fee Diversion. Congress has periodically used patent fees to fill budget gaps, leaving the Patent & Trademark Office (PTO) understaffed and inventors underserved. It is time to end this practice through legislation forbidding fee diversion.

Move to First Inventor To File—With a Grace Period. ACS supports aligning the U.S. patent system with the “first to file” approach used in the rest of the world, but only if other countries establish a grace period for inventors to publish or sell their invention for up to a year prior to filing. The “first to invent” approach is a unique feature in U.S. law, and instituting a grace period would avoid unduly disadvantaging U.S. inventors.

Prevent Required Searches. ACS opposes requiring inventors to conduct professional searches on behalf of the government. This unduly burdens inventors with a PTO responsibility.

Minimize PTO Process Regulations. ACS opposes allowing PTO to create procedural rules that limit inventors’ rights to seek protections for their inventions. This has been attempted in the past to help solve PTO’s backlog, but it only hurts inventors.

Allow Public Submission of Prior Art. ACS supports public submission of prior art during patent examination—and for it to be meaningfully considered—as a way to improve patent quality.

Keep Best Mode. ACS supports keeping the “best mode” description of an invention in a patent as a requirement for its enforcement. Best mode leads to better science and better documented patents.

Do Not Narrow Injunctions. ACS opposes allowing Congress to narrow the ability of an inventor to stop violators from profiting from their patent, a protection important to the chemical enterprise.

After years of promise and disappointment, we anticipate that this is the year patent reform will finally happen. As you follow the headlines in C&EN and elsewhere, take a moment to appreciate the impact patent reform may have for you, and the many benefits chemical innovations deliver to society through our robust patent system.

I would note that in addition to working for patent reform, CPRM has two key tasks, each closely aligned with the ACS Strategic Plan. First, CPRM strives to educate society members about patents and their impact on chemistry. Our publications and informational materials are freely available on the ACS website. (See the Committee section under the Governance tab.) Second, CPRM works to promote recognition of chemist and chemical engineer inventors’ contributions by nominating deserving scientists for awards such as the National Inventors Hall of Fame. CPRM welcomes your suggestions for these important awards.

I look forward to hearing your thoughts on how ACS and CPRM can continue to advance the society’s important goals. Please e-mail your comments to me at patents@acs.org.

Views expressed on this page are those of the author and not necessarily those of ACS.