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A CRITICAL ASSESSMENT OF THE USPTO POLICIES TOWARD SMALL ENTITY PATENT APPLICATIONS

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The United States Patent and Trademark Office (USPTO) is the regulatory agency empowered by the US government to issue patents for novel inventions. Patents in turn provide inventors a limited monopolistic window during which exclusive rights to the underlying technology enhance the likelihood of successful commercialization. Policies governing the patent process have evolved over two centuries and are often credited for creating an environment conducive to inventor productivity. For example, the number of patents issued per person in the US today is four times greater than those issued in Europe. The ability for small entities to receive patents makes it easier for inventions conceived in a garage or university lab to become commercially viable. With all its success, the USPTO now faces various challenges including a sizable backlog of unexamined patent applications. Attempts to address these challenges have been ongoing, and, since 2005, Congress has been working to remedy issues with the US patent system. This effort for patent reform has recently promulgated in the America Invents Act. This article examines both current policies that potentially affect small entities differently than large entities and aspects of the reform act that could be detrimental to small entities. Because regulatory reform cannot address all the obstacles faced by small entities, we discuss a promising new technology that may mitigate certain competitive disadvantages faced by small entities today—3D printers.
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Keywords: 3D printers; America Invents Act; First-to-file; First-to-invent; Independent inventors; New matter developed postfiling; Postissuance; Small and large entity inventors; Stanford v. Roche; Three-tier tracking; United States Patent and Trademark Office (USPTO); Unity of invention

Document Type: Research Article

Publication date: March 1, 2011

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