The End of the First-to-Invent Rule
The demise of this singular American Institution
Posted earlier this year in the IDEA: Intellectual Property Law Review, Volume 49, Number 3, this paper written by Michael F. Martin, Dean of Law School, Fordham University provides a historical perspective on the evolution and challenge to the First-to-Invent Rule of the United States Patent Law. While several proposals to the U.S. patent law have successfully resulted in amendments over the past decade - this amendment has withstood repeated attempts of passage since the early 1960's.
This article tells the story of how the United States came to adopt its first-to-invent rule of priority, and explains some of the ideological reasons for its attachment. On what seems to be the eve of its demise, this article maps out the extraordinary history of this singular American institution.
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The Overhaul of U.S. Patent Law
What impact the American Invents Acts will have on your IP
Recent mega-acquisitions of patent portfolios with unprecedented valuations by large multinational corporations underscore a trend of the radical shift away from an intellectual property marketplace infused with small innovators, toward one in which large, multinational corporations own a growing share of U.S. patents. A recent panel sponsored by NSBA and IEEE representing guest speakers such as: retired Chief Judge Paul Michel, Ron Hira, Outsourcing America, Henry Nothhaft, Great Again, and Herbert Schwartz, Patent Law & Practice addressed the emerging trends and their effect on independent inventors, small business, universities and their faculty and student researchers.
Read a perspective by Ron Katznelson Ph.D, President of Bi-levels Technologies that provides background to this historic sea change in American innovation.
Learn why the NSBA and IEEE opposed this Legislation
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Hoover Institute Concludes H.R. 1249 Will be Disastrous for U.S. Economy
Fact: companies which have fewer than 500 employees or are less than five years old have created two-thirds of the new jobs in America over the past 30 years and, because they have no investment in the status quo, consistently create quantum leaps in technology know as "disruptive" technology. They are the direct result of our unique American Patent System which creates an "Innovation Incubator" by giving them the protection of owning what they invent under our unique First-to-Invent system, and allowing them a Grace Period before having to incur the expense of filing a patent.
Read The Hoover Institution's four-part series in which they conclude that H.R. 1249 would be disastrous for the U.S. economy.
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Torpedoing Patent Rights
In a recent article originally posted to IPWatchdog.com, retired Chief Judge Paul Michel, of the United States Court of Appeals for the Federal Circuit, cites a series of concerns that challenge the recently passed patent reform bill H.R. 1249. In his commentary he points out that this bill will, in fact add further delays to patent enforcement due to promises the bill cannot deliver.
Michel explains that three different and potentially serial challenge proceedings will lengthen the time to market for a patent, and further burden an already swamped patent office that does not have the capacity to adjudicate both types of post-grant reviews with its limited number of Administrative Patent Judges. States Michel, "In a system already plagued by delays in granting patents, they threaten to delay courts from enforcing patents once finally granted."
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The Patent Reform Battle Moves to the House
The Patent Reform Bill S.23 now moves to the House. This battle is not over. The questions your Representatives must ask themselves are:
- Do they want to vote for a measure - First-to-File - that is unconstitutional?
- Do they want to raise taxes (fees) on inventors?
- Do they want to preserve the integrity of our current Patent System that awards patents to the first person to invent versus the person who simply gets to the Patent Office first?
- Do they want to create a new litigation mechanism inside of the USPTO?
Read letters to Senator Leahy and Senator Goodlatte from the IEEE, the world's largest professional association for the advancement of technology, representing the interests of inventors rights.
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NVCA Support for S.23 Misinterpreted by Senate
Earlier this week on the Senate floor, Senator Leahy claimed support from the National Venture Capital Association on Patent Reform Bill S.23. It turns out that this was incorrect to put it mildly. However, as of today the NVCA is setting the record straight - in fact they do not support S.23. Unfortunately it is unclear whether their letter to Senator Leahy had reached the Floor in time to affect the Senate's vote and reverse this serious obstruction that will hinder the engine of American innovation for our economy. |
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First-to-Invent Essential to America's Unique Process of Invention
As the battle for Patent Reform now goes to the House of Representatives, independent inventors continue to try to have their voices heard before any final decision is made. It is important our Congressional representatives understand the experiences of inventors and listen to their opinions before enacting legislation that could seriously impact American innovation.
Read Steve Perlman's letter to Senator Cantwell regarding why "First-to-Invent" is essential for America's unique process of invention.
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National Coalition Opposed to S.23 First-to-File Provision
The most concerning measure within Patent Reform Bill S.23 is the change from the current first-to-invent system to a first-to-file system. This change fundamentally shifts the priority in patent decision from the inventor responsible for originating the idea, to others who might be first to submit an application to the patent office.
Last week IP Advocate joined the diverse coalition opposed to Patent Reform S.23 in a letter to Senate majority leader Harry Reid. This coalition includes the National Small Business Association, the U.S. Business and Industry Council, IEEE, NAPP and the Professional Inventors Alliance USA, among others. Our letter argues that start-up entrepreneurs need more time to seek outside financing and strategic partners before filing a patent, a necessary lag protected under the current system.
Read the Letter to Senator Reid >>
Read Senators Feinstein and Boxer's support to Strike First-to-File Provision of S.23 >>
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Medical Innovation & Business Journal: Special Issue on Patent Reform
Last summer IP Advocate, in association with the Medical Innovation & Business Journal (MIB), launched a special edition devoted to the potential consequences of the Patent Reform Act of 2010. Experts from various fields of intellectual property law, medical research and venture capital contributed to this special edition with emphasis on university researchers, university spin-offs, emerging start-ups and small life sciences companies, especially those in the medical sciences. The edition was hand delivered to Congressional representatives to help educate them on the impact passage of various measures within this Bill could have on American innovation.
Read what these experts have said about patent reform in this special issue of MIB Journal. Know your rights. Form your own opinion. Let us know your thoughts!
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Kappos Speaks to Importance of Patent Protection
David Kappos, Director of the United States Patent and Trademark Office, spoke this month at the National Minority Enterprise Development Conference. His comments were encouraging but regrettably pointed to the lack of minority-owned businesses using the USPTO to their advantage. Read Kappos comments regarding why participation in the U.S. Patent system is so important to American economic growth. >>
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Chief Justice Dispels Myths Driving Patent Reform
Chief Justice Paul Michel of the Federal Court of Appeals discusses the myths that have been used to advance patent 'reform'. He dispels the hype and exposes the hazards the current Patent Reform Act pose to the economy and the American patent system. Consider Judge Michel's expert perspective on "A Strong Patent System" >>
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Court Rules Myriad's Gene Patents Invalid
IP Coach Marcel Mongeon shares his opinions on the landmark ruling that invalidated several of Myriad's BRAC patents. The court found that the breast cancer genes in question were not a definition, but rather just the detection of a product of nature.
See how Mongeon thinks this ruling will impact the biotechnology industry.
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Rebuilding the Road to Innovation
IPAO founder Dr. Renee Kaswan speaks out in November's BNA Life Sciences Law & Industry Report. Kaswan discusses the fallout from the landmark ruling in Stanford v. Roche and what it will mean for both university and inventor. Learn how IPAO strives for Rebuilding the Road to Innovation >>
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The Patent Reform Humbug
Patent attorney John Connors presents the argument that the proposed Patent Reform Act of 2009 will result in patent devaluation and is not reform at all, but rather a throwback to a model that favors monopolies and cartels over individual freedom. Delve into The Patent Reform Humbug to see the dangers of the proposed reform scheme >>
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Big Business v. Inventors
The proposed 'reform' legislation currently before Congress will force inventors to wrestle for their IP rights, if approved as drafted. What has been termed 'reform' is appropriation of the patent system by the interests of big business at the expense of innovators. Check out Patent Reform: What's at Stake, Why It Matters >> |
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Supreme Court Considers Patentability
The U.S. Supreme Court heard arguments in the "case of the century for patent law" this November, but will likely not issue its opinion until spring. This ruling will be critical to academic researchers and all inventors who deal in method patents. Discover the importance of the Supreme Court Hearings on Patentability >> |
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IPAO Joins SBC to Protect Rights of University Scientists in Patent Debate
IP Advocate today announced it has joined the Small Business Coalition on Patent Legislation to better respond to Patent "Reform" proposals, currently under consideration in the U.S. House and Senate, which would significantly harm inventors, universities and small businesses. Read IP Advocate's announcement of SBC alliance >> |
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What Others Are Saying
The Patent Reform Act of 2010 has stimulated a strong debate over whether our current system needs reform or not. Members from both sides of this controversy agree there are necessary improvements to be made at the USPTO. However, one side believes that it has made America the world leader in innovation since the signing of our Constitution which the current reforms could dismantle. Read both sides of this issue and become familiar with what impact its proposed bills may have on your innovation.
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