It will become harder for companies with new inventions to remain in "stealth mode," thanks to a major change in patent law that was scheduled to take effect last month. Under Subtitle E of the American Inventors Protection Act of 1999, the contents of patent applications will be published 18 months after their effective filing date if the applicant wants to "foreign file" with a patent office in another country. That's a sea change. Since the 1950s, applications have been held in strict confidence at the U.S. Patent and Trademark Office (USPTO).
The new law means that the mere fact that you've applied for a patent will become public record -- and quickly. Sensitive information -- for example, that a patent request was rejected as being too broad -- will be released to prying eyes. Regardless of whether you ultimately receive a patent, your application will be displayed on the USPTO Web site (www.uspto.gov) in 18 months. And, oh yeah, that service will cost you $300 per application.
The fee was the final insult for some businesspeople who opposed the 18-month publication rule. Under the public-comment section of the USPTO Web site, one person wrote, "The 18-month rule is for the benefit of the bullies and the rip-off artists."
Of course, you can always opt not to publish; however, in most cases you then lose your right to "foreign file." That's a major price to pay. (You have 45 days to let the USPTO know that you've decided to foreign file; the office will then publish your application.) The USPTO also intends to publish the patent applications of overseas-based companies in 18 months -- in English. That has to sound good to anyone who's ever attempted to translate patent papers written in Japanese or German.
In fact, the new law aims to level the international playing field. Most developed countries have an 18-month publication rule, says USPTO director Q. Todd Dickinson. The U.S. rule "allows the rest of the world to know what's state-of-the-art a little earlier," he says. "You know which way the technologies are headed."
Life surely won't be the same for legions of venture-backed E-commerce start-ups; until now, they've been able to file for patents while cruising out of range of the radar. Dickinson counters the opposition by pointing out that you can now begin seeking protection even before a patent is granted. That's a real advantage, he claims, "if you're in a fast-moving technology, and you can't wait two years for us to finish" the patent-approval process. The new rule "can trigger enforcement rights sooner," he says.
For more information about the changes, contact the USPTO at 703-308-6906.