"For your last innovation you did not patent, which if any of the following influenced
your company's decision?"
Although Obama's America Invents Act (AIA) as aimed to help small businesses in the realm of IP, it has actually made it rather difficult for them to file for patents.
- First to File
- Before 2013, patents were granted to the first inventor; however, now the patents are granted to whoever is able to get the patent application to the patent office first. What does this mean for startups? They need to shell out all the cash for patent filing well before they know whether or not the patent idea has a chance of working.
- Patentability of Trade Secrets
- Previously, patents and trade secrets were mutually exclusive. If a company kept a trade secret undisclosed for more than a year, it couldn't be patented. However, under the AIA companies could treat an invention as a tradesecret for years and then patent it later. This is good for big companies, but small companies usually do not have tradesecrets.
- Post-Grant Opposition
- The AIA allows a third party to challenge the validity of a patent within its first 9 months of issue. Small companies, who may be unsure of the validity of their patent early on, will be unable to file broad patents. The elimination of broad patents is good overall, but it makes it very difficult in the patent field for startups.
- Fast Tracking
- Companies can now "fast track" a patent application for a fee to get it processed quicker. The USPTO charges an extra fee of $4,800 or $2,400 for businesses with less than 500 employees for this fast track process. Small startups are unlikely to take part in the fast tracking of patents due to the higher fees, making this an additional benefit to large companies through the AIA.
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