The Patent Reform Act of 2005 () was United States patent legislation proposed in the 109th United States Congress. Texas Republican Congressman Lamar S. Smith introduced the Act on 8 June 2005. Smith called the Act "the most comprehensive change to U.S. patent law since Congress passed the 1952 Patent Act." The Act proposed many of the recommendations made by a 2003 report by the Federal Trade Commission and a 2004 report by the National Academy of Sciences.
The 109th Congress concluded on January 3, 2007 without enacting H.R. 2795. Much of the proposed Act was carried into the proposed Patent Reform Act of 2007 (, ), which was introduced in the 110th Congress on 18 April 2007. A similar act was introduced as the Patent Reform Act of 2009 in the 111th Congress.
Proposed changes in U.S. patent law
H.R. 2795 would have harmonized American patent law with the patent laws of the rest of the world by making the following changes in U.S. patent law:
Switch from first to invent to first to file
The United States is currently the only country in the world that gives priority to the application that claims the earliest invention date, regardless of which application arrives first. The first-to-invent system is thought to benefit small inventors, who may be less experienced with the patent application system. Critics of the first-to-file system also contend it will create a "race to the mailbox," and result in sloppier, last-minute patent applications. The first-to-invent system, however, requires the United States Patent and Trademark Office (USPTO) to undertake lengthy and complicated "interference" proceedings to try to determine who invented something first when claims conflict. The first-to-file system, supporters contend, would inject much-needed certainty into the patent application process. Finally, because every other country is on a first-to-file system, supporters claim that the majority of patent applicants and attorneys are already operating on a first-to-file basis.
A first-to-file priority rule does not permit one individual to copy another's invention and then, by virtue of being the first to file a patent application, be entitled to a patent. All patent applicants must have originated the invention themselves, rather than derived it from another person. In order to police this requirement, the proposed H.R. 2795 provided for "inventor's rights contests" that would have allowed the USPTO to determine which applicant is entitled to a patent on a particular invention.
Expand prior user rights
Even under a first-to-invent system, the first-inventor-in-fact does not always obtain entitlement to a patent. If, for example, a first-inventor-in-fact maintained his invention as a trade secret for many years before seeking patent protection, he may be judged to have "abandoned, suppressed or concealed" the invention. Well-established patent law provides that an inventor who makes a secret, commercial use of an invention for more than one year prior to filing a patent application at the USPTO forfeits his own right to a patent. If an earlier inventor made secret commercial use of an invention, and another person independently invented the same technology later and obtained patent protection, then the trade secret holder could face liability for patent infringement. Many foreign patent regimes, on the other hand, protect prior user rights, which are often seen as assisting small entities that may lack the sophistication or resources to pursue patent protection. The American Inventors Protection Act of 1999 established a "first inventor defense," but limited the defense to patents on "methods of doing or conducting business;" H.R. 2795 would have extended it to all subject matter.
Publish patent applications
Outside the United States, pending patent applications are published 18 months after they are filed, which forewarns competitors that a patent is pending. Prior to 2000, American patent applications were never published. The American Inventors Protection Act allowed pre-grant publication 18 months after filing unless the inventor certified that he would not be seeking patent protection abroad. H.R. 2795 would have closed this loophole.