Wednesday, August 09, 2006

ComputerWorld quotes Sunstein on first-to-file in Hatch-Leahy bill

ComputerWorld refers to Bruce Sunstein on the debate about the first-to-file provision in the Hatch-Leahy patent reform bill:

The measure provides a "pretty intelligent balancing act" toward patent reform, added Bruce Sunstein, head of the patent practice at the Bromberg & Sunstein LLP law firm in Boston.

The first-to-file provision shouldn't be a major problem for most small inventors, said Sunstein, whose firm has represented several tech companies. The initial patent filing fee can be as low as $100, while legal disputes over who was first to invent can cost $100,000 or more, he said.

In a first-to-file system, "most of the time a dispute would be handled by checking a couple of dates," Sunstein added. "I don't think it's much of a loss for small inventors, but it's a gain for simplicity in the system."

One notes that the only filing one can obtain for about $100 is a PROVISIONAL application. A patent interference case for $100,000 would be a bargain.

The point about "checking a couple of dates" overlooks that the problem for the smaller inventing entities is that they cannot file AS FREQUENTLY or AS QUICKLY as larger entities. Yes, resolving issues in a "first to file" system is easier than in a "first to invent" but that completely misses the point about why smaller entities are complaining about "first to file."

"This 'first-to-file' thing sounds like an outrage and total mockery of the meaning of the patent to me," Michael L. Love said in an e-mail to ComputerWorld. "Unaffiliated inventors may be shut out, and the prior art consideration could go out the window, as a patent becomes a mere paper declaration."

For the moment, this is much smoke about nothing, as the bill is going nowhere for the time being.

[IPBiz post 1857]


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