First-to-File vs. First-to-Invent
Last Updated on Wednesday, 7 April 2010 02:06
Written by dbhalling
Wednesday, 7 April 2010 02:06
My good friend, Gene Quinn, of IPWatchdog, has am interesting post on the present patent reform bill. http://www.ipwatchdog.com/2010/04/04/kappos-round-table-listening-continues-on-campus-of-uspto/id=10002/
Interferences & Independent Invention
If there were only 55 interferences last year, how come all the people calling for patent reform state that independent invention happens all the time? If independent conception of inventions are so common you would expect a lot more interferences. While I would grant you that the PTO is very reluctant to declare interferences, even taking this into account it shows very little independent invention. So all the people calling for patent reform claiming that technological progress is inhibited because they are not allowed to practice their independent inventions appear to be disingenuous at best. What is more likely is that they have not independently derived these inventions and they just do not pay a license fee to the true inventor.
First to File vs. First to Invent
The proposed solution for the first to file conversion is the scaled down one year grace period. Your post clearly points out the limitations of this provision – namely it only protects the inventor against bar issues, but does not protect them from thieves that file a patent before the true inventor. This does nothing to preserve our patent system for independent inventors or start-up companies. No one with any resources and knowledge will rely on this scaled down one year grace period. Within a decade of having passed this reform, people will argue that the one year grace period is meaningless and we should just move to a true first to file system. Given the cost of filing a patent this will be the nail in the coffin of American Entrepreneurialism. The patent system will just be for large entrenched companies who create incremental inventions.
Cost of Interferences
Your argument sounds logical. Since most independent inventors cannot afford the cost of an interference, we will just get rid of them. This correctly identifies the problem, but proposes an unjust solution. A just solution is to reduce the cost, time, and formalism associated with interferences. Logically, the inventor is the first one to conceive of the invention and reduce it to practice. We need a system that is just and practical. A practical system that is not just will lead to unintended consequences. For instance, the publication requirement has led to our patent system giving away our technology to the rest of the world. The practical answer was to publish our patent application and conform with the rest of the world. The just and practical answer was to fund the PTO fully, eliminate needless formalities to patents and have patents issue in under one year. The just and practical answer would have ensured that the US stayed the technological leader of the world and therefore economically vibrant. Our present economy is the result of the sin of being practical but not just.
24 Month Provisional
While I am not inherently against this proposal, I can just hear the critics screaming “submarine patents.” Extending the time to 24 months from 12 months that a provisional patent application allows the applicant to file a regular patent application sounds like a practical solution, however the better answer would be to streamline the process of applying for a patent. We should work to reduce the time it takes to obtain a patent, reduce the cost it takes to obtain a patent, and reduce arbitrary rules required to obtain a patent that add no real value to the patent system.
Real Patent Reform
Nothing in the present patent reform proposal does anything to solve the real problems faced by inventors. Instead of agreeing to a less bad patent reform bill, which should trash this bill and start over. The number one issue that has to be in any patent reform bill is to stop fee diversion. Fee diversion is fraud pure and simple. If Congress had to live up to Sarbanes Oxley, they would all be in jail. We need to repeal KSR. Any objective system of patentability is better than a subjective standard for entrepreneurs and businesses. (Only a judge or a trial lawyer thinks a subjective test is just). For more on real patent reform see Real Patent Reform.
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