What is the effect of “first-to-file”?

June 24, 2011 § Leave a comment

I came across this article this morning, talking about the US House of Representatives passing a patent reform bill. The thing that jumped out at me was this:

The Senate and House bills would ensure that the first person who submits an application gets the patent, switching from a “first-to-invent” system.

Now, I’m not a patent lawyer, and everything I know about this new bill comes from the article I’ve quoted, so maybe I’m missing something here, but there seem to be a couple of things very wrong with this idea.

Firstly, where does this leave the whole concept of “prior art” as a reason for invalidating an application. If I file a patent and someone can show that they invented the particular innovation first, then the way things currently work is that I can not be awarded the patent, even if I was the first to file. So if this change to “first-to-file” is to have any practical effect, it seems to me that prior-art could no longer be a cause for invalidating an application. After all, if I am first to file, and someone comes along to show they invented it first, then my application should be invalidated, and the other party would then be free to file a patent. I.e. the patent goes to first-to-invent. If the intent of the bill is to essentially remove the prior-art restriction on patents then that is simply evil. If not, then the change has no logical meaning.

Assuming the worst, that the first-to-file can be awarded the patent regardless of prior-art (i.e. a first-inventor trumping the application) then that would seem to open up an entire new industry to sit alongside patent trolling – business whose sole purpose is to look for inventions whose inventors have not patented them, and make applications for those inventions. After all, patent application is a time-consuming, costly business and many people don’t bother. A company consisting solely of patent lawyers and patent authors could really clean up, adding no value to the world apart from lining their own pockets. I have to wonder what the result would be for the original inventor. Would they end up in violation of the patent and have to pay damages? If not, then what exactly does this provision mean?

I hope I’m wrong in my interpretation of this, but given the way that intellectual property laws have been skewed and abused in recent times towards lining the pockets of big businesses, at the expense of individuals and small companies, I really fear for what this might mean.

(p.s. what’s with the mainjustice website? They seem to have pulled some trick that prevents me from selecting text on their page)


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