The new US patent law might favour large companies (Image: Ted Russel/Time and Life pictures/Getty)

WHEN Chuck McLaughlin recently tried to prove that a US inventor had beaten both Japanese and European firms to the invention of a novel type of flexible LCD display, he faced an uphill struggle. The slapdash inventor had kept no signed and dated notes to prove when he had sketched the gadget’s structure or built a prototype.

“He had no notebooks. No prayer of proving when he invented the thing,” says McLaughlin, who licenses patents on display technologies for Fergason Patent Properties in Menlo Park, California. “So we had to go back and find secondary evidence like Visa card statements that showed when he bought equipment. And a lab technician swore an affidavit saying he had seen the device on a certain date.” Eventually, they proved the inventor had beaten his rivals by two months.

Such experiences show that the US’s current system of relying on notebooks to prove when a device was invented can be commercially harmful, says the American Intellectual Property Law Association. It happens because, unlike the rest of the world, the US allows inventors to use documentary evidence to prove that they were the first to develop an idea. In all other countries, the first person to apply for a patent is deemed to be the inventor,


That could all change in the next few weeks, if the America Invents Act, already passed by the Senate, is passed by the House of Representatives. The act will eradicate the first-to-invent principle and make first-to-file – and a race to the patent office – the norm in the US. “This will encourage inventors to file. The old law encourages slumping along and indiscipline,” says McLaughlin. It will also reduce the complexity of patenting in the US, where lengthy battles to prove who invented something first can be costly and time-consuming.

It will now be a race to the patent office. The old law encouraged slumping along and indiscipline

But independent inventors are worried. Under first-to-invent, people get a year’s grace from the provable invention date to refine their idea before they must file a definitive patent. “If they now have to file before they are ready they will tip off large rivals who with far greater resources can perfect the system before the true inventor and beat them to market. Plainly, first-to-file strongly favours large firms,” says Ron Riley of the Professional Inventors Alliance in Washington DC.

Though innovation has arguably thrived in other countries, Riley says it will have come at the expense of independent inventors. “They are clearly disadvantaging their economies,” he says.