Jim Prosser, a lead Google spokesman, agrees there's a problem. "The industrywide rise in patent litigation is the legacy of overly broad and vague software patents being issued when they shouldn't have, and Google's success makes us a particularly attractive target. Our acquisition of patents, including Motorola Mobility's, strengthens our portfolio and lets us better protect our products from anti-competitive threats. We've never sued anyone offensively using patents."
Experts all agree on this much: New patent regulations, while they contain needed reforms in some important areas, don't truly address what ails U.S. innovation the most: the rise of billion-dollar patent trolls, companies allying and trading patents to reshape technical landscapes, the growing complexity of the system and the lack of protection for universities and other noncommercial entities to escape litigation.
Nor do the new rules address the issue that rankles some observers the most: Too many broad or overlapping patents that confuse the innovation landscape, cause litigation and create an overall delay in getting technology to market.
Enter the America Invents Act
The America Invents Act (AIA) is the biggest change to the 222-year-old patent system since 1952. Signed by President Obama in 2011, it is going into effect gradually.
Perhaps its biggest change -- a switchover to a first-to-file system from the existing first-to-invent system -- goes into effect in March 2013.
What this change means is that a patent will no longer be granted to the person who can prove he or she created an invention first. Instead, patent protection goes to the person who files the patent application first, with a grace period of one year if the inventor has publicly disclosed the invention before filing the patent application.
Moving the U.S. from its current first-to-invent system to a first-to-file-with-grace-period system is bound to upset many small companies, which will argue that it's easier for larger companies to win the race to the patent office than it is to actually invent.
So predicts Stephen Merrill, executive director of the program on science, technology and economy for the National Academies of Science (NAS). He co-authored a paper in 2004 calling for widespread patent reform, and the AIA includes some of those suggestions.
Surviving the battle, then losing the war