America Invents: What The New Patent Law Means For Games
September 22, 2011 Page 1 of 3
Last week, President Barack Obama signed into law the bipartisan America Invents Act, a measure that its authors claim makes "the first significant reforms to the nation's patent system in nearly 60 years."
But don't expect "patent trolls" who plague the video game industry to go hiding under the bridge just yet, or other burdens on innovation and ingenuity to vanish into thin air.
Patent reform has been a hotly debated topic, particularly for the past several years. The software sector -- including video and computer games -- has seen an enormous amount of patent-related lawsuits, some filed by legitimate inventors who put their patents into practice, and some filed by professional litigators, who own wide-ranging patents and make money by suing anyone perceived to be an infringer.
Search "patent" on this website, and one can get an idea of just how time-consuming and costly patent lawsuits and litigation can be in a fast-moving, innovation-reliant industry like video games. And as video games expand their scope into networked platforms like smartphones and web browsers, we're seeing patent holders from traditionally non-gaming-related sectors creeping in and crying "infringement!"
According to a summary of the Leahy-Smith America Invents Act, which is the result of six years of consideration in Congress, the law is intended to make the patent system more efficient, encourage higher-quality patents, and in turn push entrepreneurship and create new jobs -- something that the U.S. needs badly.
One of the most highly-touted ways the law intends to speed up and simplify the patent process is by moving from a "first-to-invent" to a "first-to-file" system, the latter of which is currently used by the U.S.'s major trading partners.
So instead of Joe Inventor and Jane Ingenious arguing in front of a court over who first conceived the idea for a new holographic social game that charges microtransactions via brainwaves, a court can actually look at the date to determine who filed for the patent first. Whoever filed first, wins (i.e., is granted the patent).
The act finally brings the U.S. up to a world standard and on its surface, streamlines the administrative process, simplifying the process of determining who should be granted a patent. But moving to "first-to-file" (effective in 18 months) is not necessarily good news, according to Stephen Rubin, an intellectual property lawyer with a concentration on the games industry.
"The new law is decidedly a mixed bag for the video game industry," he said. "The promised sweeping reform never happened. The trolls remain alive and well in rural Marshall, Texas. It is not a simple matter to break down the pros and cons of the law. In part, this is due to the fact that the video game industry is made up of both large and small tech companies and what is good for one is not necessarily good for the other. Most prominently, the U.S. adoption of the first-to-file standard benefits large companies over small inventors who tend to shop tech around before filing an application."
Rubin is not the only one to accuse the new law of favoring large corporations. Steve Perlman, a serial entrepreneur who is president and CEO of game streaming service OnLive, inventor of QuickTime and WebTV, and holder of over 100 patents, has been closely following this act, calling loudly for patent reform.
He minced no words when he argued that there is little reform within the America Invents Act, which he said is absolutely not the way to encourage innovation or create jobs inside or outside of the video games industry. The law's first-to-file provision and other aspects favor speedy filing over innovation, and stifles American ingenuity facilitated by the country's more unique "first-to-invent" system, he argued.
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