By Donald Zuhn --
Two Op-Eds appearing in The Scientist over the summer present competing views on the impact of the Leahy-Smith America Invents Act. In an article published in July, Dr. George Lewis, the Chief Scientific Officer and co-founder of ZetrOz, a biotech company based in Connecticut, argued that "[t]he controversial law . . . reflects our nation's bias toward corporations over smaller businesses and independent or university-affiliated scientists" (George Lewis, "Opinion: Racing Toward Invention," The Scientist, July 23, 2013). As a result of the move to a firs-to-file regime, Dr. Lewis contends that corporations can "submit a new application with an updated version of an idea anytime they deem appropriate, [and thereby] block less-endowed inventors who simply cannot afford to file an application due to the costs involved." He also asserts that the AIA will inhibit open communication among researchers due to the loss of the pre-AIA grace period, and therefore, that the AIA also constitutes a "setback" for academic institutions.
In an article published last month, G. Nagesh Rao, the co-founder of the public-private partnership, Made in America, and a former patent examiner and senior policy advisor for the U.S. Patent & Trademark Office, countered that while "there has been much criticism of the changes imposed by the Leahy-Smith America Invents Act (AIA)," such criticism has been "either incorrect or missing key pieces of information to explain why the law operates in a particular fashion" (G. Nagesh Rao, "Opinion: AIA Does Not Discriminate," The Scientist, August 21, 2013). Mr. Rao argues that "the passing of AIA did not result in a 'first to file' system, as Lewis and others argue," but rather "adopt[ed] a modified 'first inventor to file' system, which preserves some of the protocol matters of the former 'first to invent' system, including the 1-year filing grace period." He also asserts that the AIA provides "other added benefits for biotech, such as the implementation of three levels of examination procedures: accelerated, regular, or decelerated." Mr. Rao concludes that "no legislation emanating from a democracy is going to be perfect given the various stakeholders in play, but the passing of AIA was a step in the right direction for keeping the United States’ competitive edge in a globalized economy."