Where were you on September 16, 2011, when President Obama signed the Leahy-Smith America Invents Act (AIA)?
Vanessa (names have been changed) was in her studio, working with a few engineer friends to perfect a groundbreaking performance instrument. Jonathan was in his co-working space, grinding through test concepts for the creative industry-centric software he is developing. While neither innovator works in an actual basement, they are "the independents": The financially under-resourced members of the economy most potentially vulnerable to the change in U.S. patent law. Fortunately, they are also Philadelphia Volunteer Lawyers for the Arts (PVLA) clients.
Bring Me Your Micro Entities, Your Basement Inventors
On March 16, the AIA is scheduled to go into effect. A talked-about reform that has come under fire from critics as "pointless" or "hazardous to start-up culture," the AIA brings U.S. patent law more current with global standards — and shifts the system from a "first-to-invent" to a "first-inventor-to-file" model. For larger American enterprises, this reform would ideally mean that R&D (research and development) is rewarded with a higher-quality patent easier to enforce globally, less encumbered in its journey through the U.S. Patent and Trademark Office (USPTO) by pro se application backlog. For Vanessa or Jonathan, however, this reform could possibly mean the ability to protect their ideas is priced and rushed out of their reach, chilling grassroots innovation and economic development.
In response and pursuant to Section 32 of the AIA, a task force of constituency representatives has tackled the job of providing a national network of patent pro bono programs under the USPTO and the Federal Circuit Bar Association (FCBA) in partnership with regional providers. Programs in Minnesota, Colorado and California have launched with the support of VLAs and other nonprofit pro bono partners, and by 2014 the goal is a seamless national blanket of education and advocacy.
To qualify for pro bono legal work of any kind through PVLA, individual creators, start-ups and nonprofits must meet means and asset tests. Generally, PVLA clients live well below 300 percent of the federal poverty level, and businesses and nonprofits are very small. The AIA has created a heavily discounted USPTO filing fee structure for "micro entities" that would be appropriate for pro bono and modest-means clients.
How to Make a Difference
Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit said, in a challenge to IP lawyers, "A true measure of an attorney’s dedication to the ideals of his or her profession is willingness to undertake pro bono representation."
Members of the patent bar, both in law firms and corporations, are eligible to participate in the "duty and honor" of this pro bono initiative. After participating in a USPTO-led patent education training program, inventors will be directed to the FCBA, screened and then sent to programs like PVLA. Potential clients will be referred to law school clinical programs or referred to volunteer attorneys for restricted-scope representation before the USPTO. A regional panel of planners is forming and looking to expand to include members of the patent bar, law school clinicians, corporate counsel, patent support service providers, technology transfer lawyers and members of the creative class.
As always, PVLA will also continue to refer members of the creative economy to our entire population of volunteer attorneys with transactional and litigation pro bono work in soft IP, start-up and nonprofit filing and governance, tax, real estate and employment law. It is very common for a PVLA case to have a team structure, creating a significant community impact and fostering a collaborative experience for attorneys across practice groups and between satellite offices.
How To Get Out of Your Office
Our lawyers work hard. Therefore, many of them appreciate the opportunity to meet colleagues, potential clients and members of the PVLA community in person. Interested? The USPTO is holding a forum about the AIA in Washington, D.C., on March 8, with trainings to follow. Coming up March 13, members of Philadelphia’s creative economy are set to convene at NextFab Studio to discuss and observe 3-D printing, prototyping and innovation in manufacturing. The week of April 20, Philly Tech Week is scheduled to bring arts, science, business and law to the regional forefront. Finally, on the evening of May 8 at Vie on North Broad Street, PVLA is set to present its annual Volunteer of the Year award for pro bono in front of the arts, business and creative sectors at the Arts and Business Council of Greater Philadelphia’s Awards 2013. Join us in pro bono, in innovation, and in celebration. •
Miriam K. DeChant is the director at the Philadelphia Volunteer Lawyers for the Arts, a program of the Arts and Business Council of Greater Philadelphia in its 35th year providing pro bono assistance and education to the region’s creative economy. For more information about PVLA programs and events, visit www.artsandbusinessphila.org/PVLA.