Kappos: the U. S. is already operating as a “first to file” patent system [?]

Of the text within the post Is the First-to-File Patent Reform Bill right for America?


The first to file (FTF) provision eliminates the current first to invent filing system that goes back to the earliest beginnings of our nation. The FTF transition would eliminate the current one-year grace period that allows inventors to prove they were first to invent within one year from the date of their invention. Retaining the current grace period and filing system received little attention as small inventors were largely left out of the previous Congressional hearings on patent reform in 2009 and 2010, and no hearings were held by the Judiciary Committee of the new Congress prior to vote on the Senate floor.

It is absolutely correct that Congress paid little attention to the interests of small inventors during the various hearings on patent reform since the year 2005. Many aspects of S.23 favor large entities over small entities.

According to Patent and Trademark Office Director, David Kappos, the U. S. is already operating as a “first to file” patent system because in 2007, the total number of interference cases for all applications was seven, and only one interference claim involving a small or medium sized entity was decided based on priority alone – out of 441,637 patent granting decisions. Interference cases are where two inventors file their patents nearly simultaneously and rely on the first to invent criteria during interference proceedings.

The relative absence of patent interferences is NOT evidence that the U.S. is already operating on a "first to file" system. In a first to invent system, an inventor can "swear behind" references under 37 CFR 1.131 and thereby become entitled to a right to patent. This aspect of "first to invent" has nothing to do with the presence, or absence, of interferences. This aspect of "first to invent" is used more frequently than the procedure of patent interference.