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.
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!
- Patent Reform Supported By Small Entities? (gametimeip.com)
- Congressman Proposes Sensible, Two-Step Patent Reform Process (gametimeip.com)
- Can We Have An Intellectually Honest Patent Reform Debate In The House? (gametimeip.com)
- The Time for Global Harmonisation is Now: so says David Kappos, Director of the USPTO (ipkitten.blogspot.com)
- General Patent Corporation Owner Poltorak Suggests Improvements To Patent System (patentcalls.com)
- If Patent Interference Practice Is Too Expensive For Inventors, Why Is Eliminating It The Answer? (gametimeip.com)
- A Radical Alternative Patent Reform Proposal: Eliminating The Non-Obvious Requirement (gametimeip.com)