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america invents act, IP, Patent

Patent Reform Boosters Invent Facts To Combat Real Arguments

Ideologically speaking, I can’t support something when that thing’s supporters resort to lies and misdirection to “prove” why I should support it.  So, just add this to the list of reasons why I oppose patent reform:

Determined to battle what he calls “misinformation and distorted commentary” about first-to-invent, Kappos and his team turned to the data. What they found was that of the last three million patent filings the USPTO has received there was only one case in which a micro entity (a company with five employees or less) engaged in an interference as the second to file and actually prevailed. Conversely, they found that of the cases they looked at there were 10 micro entities that would have been better off if the US was already working under first-to-file.

via Kappos seeks to fight patent reform opposition with facts

Unfortunately, the “misinformation and distorted commentary” is coming from his own camp.  Starting with Kappos’ last point, how is telling us that 10 “micro entities” would have obtained patents they didn’t deserve under his proposed system supposed to win support for it? The whole reason I (along with many others) oppose first-to-file is that it’s completely arbitrary.  Will I be able to figure out how to help any company I’m working with manipulate the process to maximize our advantage under a new set of rules? Of course! But that doesn’t make it right.

Second, first-to-file is not only about interferences!  I’ve really heard enough of the interference statistics. First-to-file also eliminates the practice of “swearing back,” which helps inventors from being “superimposed” with information that didn’t exist at the time of conception!  Do you really think its fair to deny me an invention because six months after I invented it, someone else published something that renders my invention obvious?  A commenter on the above-mentioned post noted that he swears behind references in 10% of the cases he files! This person may be an anomaly, but it certainly can’t be ignored entirely.

Finally, and most importantly, Kappos’ selection of a 5-employee “micro entity” is highly suspect. Commenter Richard Street said it best:

Why would Mr. Kappos restrict his analysis to micro entities (five or fewer employees). There are obviously many small businesses which would have more than five employees, indeed under the Patent Office’s own definition a small entity may have up to 500 employees. If Mr. Kappos wants to prove something with statistices, I would suggest looking at the experience of small entity companies in interferences rather than micro entities.

More than anything else, I’ve begged for an honest debate about patent reform and we’ve yet to see it… So until I see an honest argument why I should be fer it, I’m a’gin it!



7 thoughts on “Patent Reform Boosters Invent Facts To Combat Real Arguments

  1. Kappos misleads on First To Invent in many ways. Perhaps the most common use of First to Invent is “Swearing Behind” as an active defense to an Office Action.

    This happens to all inventors large and small but must disappear as a prosecution tool entirely if First to Invent is replaced by First to File.

    Kappos does not even mention this and related prosecution impacts yet he is a Patent Attorney not a civilian who might be ignorant in his position.

    Methinks there is something rotten in Alexandria.

    Posted by Vic Kley | April 7, 2011, 11:32 am
  2. There are several problems with the bill, FTF is just one. For small firms one problem is it can take years to get an invention ready for market because they typically are working on fumes on a pay as you go system. If they have to file before they are ready they can end up tipping off large potential competitors who with far greater resources can finish the invention before the true inventor and beat them to market. Plainly, it’s strongly in favor of large firms.

    Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large corporations maintain their monopolies and kill their small entity and startup competitors (which is exactly what they intended it to do) and with them the jobs they would have created. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.

    Please see:
    http://truereform.piausa.org/ for a different/opposing view on patent reform

    Posted by staff | April 7, 2011, 11:42 am
  3. Actually I don’t think my experience is an anomaly at all. Most small inventors, serial entrepreneurs I know conceive an idea and make a write up. Where possible a mock up or simple prototype is next. A description is sent to our PA to put on file and date BUT NO WORK IS DONE TO FILE A PATENT AND NO SUBSTANTIAL COST INCURRED.

    Under NDA we begin looking for funders, partners and support. This process can take months or years.

    Only with the support or clear prospect of support do we commit resources to the PA to begin the patent prosecution process usually by first filing a Provisional.

    Posted by Vic Kley | April 8, 2011, 8:59 am
    • Vic,

      Thanks for clarifying. I want as many inventors as possible to comment on this topic. Lawyers spend the vast majority of their time working with corporate clients (guaranteed payment, high volume, low expectations). As a result most patent attorneys think that the corporate way is the normal/only way to file. (eg, instead of a 131, just amend and argue around the reference. Strategy may be fine for corp. defensive portfolio, but not an inventor)

      Posted by Patrick | April 8, 2011, 9:05 am


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