The founding fathers of the United States were Renaissance Men. In addition to creating the Declaration of Independence and the U.S. Constitution, several of them were also inventors. George Washington invented a 16-sided barn to thresh grain cleanly and efficiently. Thomas Jefferson invented the swivel chair and a cipher wheel used to encode secret messages. Benjamin Franklin is well known as a prolific inventor of items such as bifocals, the lightning rod, and the woodstove that bears his name. Perhaps this is why patents were addressed in Article 1, Section 8 of the Constitution: “The Congress shall have Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Congress has tinkered with patent law over the years, most profoundly with the passage of the America Invents Act (AIA), which went into effect in March 2013. Commonly known as the patent reform bill, the AIA converts the United States from a first-to-invent to a first-inventor-to-file system. This law transforms the United States to the system used everywhere else in the world. It means that the first person or company to file a patent application on an invention has the right to pursue the patent on it. With these changes, medtech inventors need to move rapidly from product concept to filing, and their patent systems need to be changed to facilitate this.
As one might expect, the AIA is filled with confusing and complicated legalese only a lawyer could love. Various acts of the law cover foreign marketing rights, post-grant opposition reviews, and third-party participation in the patent process. As patent attorneys David J. Dykeman and Roman Fayerberg explain, patent reform presents widespread changes to current patent laws: “Many provisions of the America Invents Act favor larger, well-established companies with the capability of filing many applications quickly under ‘first-inventor-to-file’ and monitoring and reacting to competitors’ patents and patent applications through post-grant opposition review and third-party prior art submission. On the other hand, as a result of a more streamlined patenting process aspiring to produce higher-quality patents under faster timeframes, smaller medtech companies may be able to develop their patent portfolios faster and end up with stronger, more strategic patent portfolios.” Regardless of size, medtech companies should work closely with their patent counsel to carefully navigate the new patent system and maximize their competitive edge in the industry.