Wednesday, April 06, 2011

"First to file": castor oil for small entity inventors?

A comment to IAM on "first to file":

Of your text --Kappos and his team turned to the data --, the US "first to invent" system has impact in areas OTHER than in interferences.

Interferences concern counts which relate to patentably indistinct, but otherwise patentable. subject matter. As a separate issue, the "first to invent" system allows an inventor to swear behind references under Rule 131, to establish that subject matter is patentable. Rule 131 declarations appear in more than 1% of all biotech/organic cases. [See citing data in 16 Mich. Telecomm. Tech. L. Rev. 53 (2009)]

An image of Kappos, once of IBM, telling small entities that the castor oil of "first to file" is good for them invites political caricature. One notes that the expedited examination program for May 2011 does not have a reduced fee for small entities. [See ]

A comment at EETimes on the expedited examination program at the USPTO:

I think it will be like ferry system here in BC: they introduced extra fee reservation that guarantees you will get on-board. That obviously reduced probability of non-reserved people of getting on board on their desired sailing. Number of ferries didn't change but the profits for the ferry corporation increased. Everyone is happy, wealthy has easy access to service, business makes more money and poor can spend more time at the ferry terminals to enjoy the views of the Georgia Strait ;-)...Kris

As to the small inventor, patent reform 2011 is likely to have consequences as found with the renovation of the 59th Street Bridge in NYC:

"The city should do something to protect pedestrians, a bump on the ramp or something," Singh said. "This is two times. This could have hit my store; I have three employees inside."
The deadly off-ramp had recently been renovated to increase pedestrian safety. Before it was revamped, the Queens Plaza exit was much straighter and easier to spot from the roadway, neighbors said.
"Now . . . there's no way to see [the new off-ramp] beforehand," said dentist Matthew Hyde, whose practice is around the corner from the last week's wreck."

**In passing, note recycling in IPBiz’s Ebert: Kinsella way off on patent reform

**A later comment to IAM:

Of the remark about --“misinformation and distorted commentary” --, the IAM post does not delve into the link between the proposed END of interference practice and the proposed BEGINNING of post-grant review.

One might look at

** a post in Intellectual Property Today titled --In Re: "Who You Gonna Call" by Chico Gholz, March 2007-- ( )

** a post at IPBiz titled -- Martin in IDEA on "first to invent"/"first to file" -- ( )

In the world of patent law, wherein disclosure of prior art is the golden rule, one (ironically) notes a lot of omitted art among the "first to invent"/"post grant review" advocates, which could be deemed distorted commentary.


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