State of Innovation

Patents and Innovation Economics

Patent Reform: “First Inventor to File” Misleading

The proponents of so called “Patent Reform” have been pushing the misleading idea that the bill does not change the US to a “First-to-File” but to a “First-Inventor-to-File.”  There is no such thing as “first-inventor-to-file.” Only one person or group can be an inventor, the other people are just clever engineers.  For instance, if I recreated calculus without any apparent training in calculus, that would not make me the discover of calculus, it would just make me clever at math.

Proponents argue we do not have a “first-to-invent” system today but a first to invent who is diligent.  A number small inventors and start-up companies I know have had to put off patent and development efforts because of lack of funding.  These groups would not receive patents for their inventions when a bigger company outspent them and filed first. Under the “first-to-invent” rule these people are awarded the patent.

Finally, these situations where two people come up with similar or the same invention independently are extremely rare.  The only justification for changing our patent system to a “first-to-file” system is harmonization.  But the countries that have a “first-to-invent” system do not have a vibrant start-up market or independent inventor sector.  Since the SBA has shown that most emerging technologies are created by start-up companies and individual inventors, this change in our system will only hurt our economy.

March 1, 2011 - Posted by dbhalling | Patents | , ,

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  1. DB,

    To be frank, I have not read read S.23.

    Every year the Patent Deform people launch another Harm-my-nation attack on the US patent system.

    After a few years, they wear you down. It becomes too depressing and oppressing to deal with them and their BS year after year. They win by means of an unrelenting war of attrition.

    Bottom line is I oppose Patent Deform for pretty much all the reasons of the previous years.

    With that said –and this is a nit pick– you definition of “first inventor to file” is incorrect.

    I could be the first to invent something in my secret basement (if only I had a basement to begin with) where after that I choose to conceal and suppress my invention. That does not unring the bell. I am still the first to “invent”.

    However the patent law is not interested in rewarding he (or she) who is merely first to invent. You must also diligently disclose.

    BTW, did you know that to “dis-cover” means the same thing as to un-cover, to dis-close (to take out of enclosure). The US patent law defines “invent” as meaning invent OR discover. ;-)

    Comment by step back | March 1, 2011 | Reply

  2. p.s.

    My admission of laziness got me to start reading S.23.


    16 ‘‘(i)(1) The term ‘effective filing date’ of a claimed
    17 invention in a patent or application for patent means—
    18 ‘‘(A) if subparagraph (B) does not apply, the
    19 actual filing date of the patent or the application for
    20 the patent containing a claim to the invention; or

    “a claim to THE INVENTION”

    Do you realize what the means?
    If you try to change your claims without filing a continuation, you might not have a valid effective filing date. Wow.

    Comment by step back | March 1, 2011 | Reply

  3. “Under the “first-to-invent” rule these people are awarded the patent.”

    Really? Let’s look at the stats courtesy of Gene Quinn:

    There have been interferences in 0.01722% of total filed applications with 0.00387% of these patent applications having the junior party (second to file) prevail.

    “this change in our system will only hurt our economy.”

    What is your opinion based on? The few buddies you have that mismanaged their start-ups to the point they didn’t acquire the proper venture capital in time?

    Stick to the facts.

    Comment by Sean | March 4, 2011 | Reply

    • Sean,

      The simple truth is a FTF system will result in start-up companies seeing less value in patents. Why? Because there will be the cases where the Angel investor/ large company decided to take someone’s invention and just not pay them or give them credit. But more importantly it will make it even easier for a large competitor to use a picket fence strategy and outspend the start-up making their fundamental patent worthless. This will make investors more reluctant to invest in start-ups. The SBA has shown that most emerging technologies are created by start-ups and individual inventors. Any proposals that undermine the value of patents to these groups will hurt our inventiveness and our economy. Our economy only grows if we increase our level of technology.

      The facts are clear that countries that have adopted a FTF system do not have a robust start-up or individual inventor community. When you combine the FTF idea with the opposition system you have just significantly reduced the value of patents to the most productive groups in our country.

      The exact same pragmatic arguments were made about Publication. Publication has caused untold harm to our patent system. Since the passage of publication, pendency times have doubled. This has destroyed the value of numerous start-ups. It gives competitors information about your technology before you ever obtain title to the invention. This has already reduce the willingness of entrepreneurs and investors to put money in technology startups. It has also made it easier for our foreign competitors to steal our technology.

      Note that since the Publication rule the number of patents issued to US residents has been flat. It is no coincidence that the US is no longer since as the most innovative country in the world. It is also no coincidence that our economy has performed so poorly over the last decade.

      Most importantly the FTF is a fraud. The first person to file is not the inventor. This will inevitably lead to the idea that the corporation can file in its own name. This will further reduce the value of being an inventor – lack of recognition will hurt the inventor’s market value. Once you have publication and a FTF system your patent system is a fraud, it has destroyed the social contract and it is not based on the merit of the patent holder (necessarily). Anti-patent groups will point out this fraud and demand that patents be eliminated. They will be logically correct and if they succeed it will be the end of the US economy.

      Sean you clearly completely ignorant about what it takes to run a startup company. Which shows why you do not understand the importance of the FTF system. Lack of cash flow is not mismanagement, it is a normal situation in a startup.

      Comment by dbhalling | March 4, 2011 | Reply

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