Director Kappos Pushes “First to File”
Director of the Patent Office, David Kappos, provided the following explanation for why we should convert from a “first to invent” to a “first to file” system at the BIO International Convention.
“Kappos’ explanation of the long odds facing a small entity claiming to be the first to invent but who filed the patent application second. Kappos likened the odds of such a Junior Party prevailing to the odds of being bitten by a Grizzly Bear and a Polar Bear on the same day. He then went on to say that you have to go back to FY 2007 to find a prevailing small entity Junior Party in an interference. As Kappos explained, those who think first to invent is a benefit for small entities are living a lie, which is certainly true, but many will not like to hear that truth.”
There are two problems with this “practical” answer: 1) the first person to file is not the inventor logically or morally, and 2) the unintended consequences of a first to file system. A system that is supposedly practical but is not just will not succeed in spurring innovation. The real answer is to reduce the burdens associated with interferences, not to trash the morally and logically correct answer – first to invent.
A first to file system will result in many poorly thought out patent applications increasing the PTO’s workload and increasing the number of Continuations-In-Part (CIPs). The confusion created by this system of filing early and then following up with corrected applications will result in litigation being more expensive and less certain. In addition, this system will further bias the patent system in favor of large entities. Large entities will use a first to file system to flood the PTO with patents to overwhelm small entities and individual inventors in the race to the patent office. Small entities and individual inventors will never be able to compete financially in this race to the PTO. According to the SBA, most emerging technologies are created by small entities not large entities. As a result, we need to make sure that our patent system is friendly for small entities if we want it to encourage innovation.
The result of the first to file system along with the publication system in the rest of the world has been to create a patent system for large entities. The number of filings by small entities in these countries is trivial compared to the number of patent filings by small entities and individual inventor in the U.S. There is no evidence that first to file system has spurred innovation in those countries that have this system. So the “truth” here is that the first to file system is not designed to spur innovation – it is a further attempt to bias the patent system in favor of large corporations.
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