Washington Technology on HR 2795
The article has the questionable proposition that "first-to-file" will favor small inventors:
But under the proposed first-to-file system, the inventor who filed his application first almost always would win the contest, even if another applicant made the invention first.
The change would align U.S. practice with international norms and significantly reduce legal costs arising from disputes over priority. This change may benefit inventors of lesser means that now are faced with litigating a patent interference claim against a larger, better-financed competitor or signing away rights in a settlement.
If the first-to-file system is adopted, it will become even more important to file defensive applications, such as provisional patent applications, as early as possible.
It is the larger, better financed competitor who will be able to file earlier and more frequently. And, recall the Apple/Microsoft/iPod saga wherein Apple was a bit slow.
Separately, of injunctions,
The new law would make it more difficult to get injunctions; it would require a court to deny an injunction if the infringer could show that the patent owner would not suffer irreparable harm as a result of any infringement.
In other words, if the patent owner could be compensated adequately for the infringer's use of the patent, the injunction would have to be denied.
This de facto mandatory licensing scheme, which would significantly curtail the patent owner's exclusive rights to use his patent, has been severely criticized.
In particular, the limitation on injunctions would be detrimental to independent inventors, universities and other entities that generally seek to license or sell their inventions.
It would let an infringer use the invention without negotiating a license and royalty, wait to be sued and then ask the court to set a reasonable license fee.
**UPDATE**
ZDNet (among others) has a different take on the impact of first to file on small inventors:
independent inventors, who have said it will unfairly hurt anyone without a battalion of patent lawyers who can race to the Patent and Trademark Office in Alexandria, Va. The rule probably would have kept Gordon Gould from being awarded the laser patents he eventually got.
But under the proposed first-to-file system, the inventor who filed his application first almost always would win the contest, even if another applicant made the invention first.
The change would align U.S. practice with international norms and significantly reduce legal costs arising from disputes over priority. This change may benefit inventors of lesser means that now are faced with litigating a patent interference claim against a larger, better-financed competitor or signing away rights in a settlement.
If the first-to-file system is adopted, it will become even more important to file defensive applications, such as provisional patent applications, as early as possible.
It is the larger, better financed competitor who will be able to file earlier and more frequently. And, recall the Apple/Microsoft/iPod saga wherein Apple was a bit slow.
Separately, of injunctions,
The new law would make it more difficult to get injunctions; it would require a court to deny an injunction if the infringer could show that the patent owner would not suffer irreparable harm as a result of any infringement.
In other words, if the patent owner could be compensated adequately for the infringer's use of the patent, the injunction would have to be denied.
This de facto mandatory licensing scheme, which would significantly curtail the patent owner's exclusive rights to use his patent, has been severely criticized.
In particular, the limitation on injunctions would be detrimental to independent inventors, universities and other entities that generally seek to license or sell their inventions.
It would let an infringer use the invention without negotiating a license and royalty, wait to be sued and then ask the court to set a reasonable license fee.
**UPDATE**
ZDNet (among others) has a different take on the impact of first to file on small inventors:
independent inventors, who have said it will unfairly hurt anyone without a battalion of patent lawyers who can race to the Patent and Trademark Office in Alexandria, Va. The rule probably would have kept Gordon Gould from being awarded the laser patents he eventually got.
posted by Lawrence B. Ebert at 1:21 PM
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