I think there are very few who would argue that the patent system does not need change, although there is not necessarily agreement on what changes are needed, as seen above. One of the main issues is that the system has grown so complex and unwieldy that small business (and individuals) have very little success with it. First-to-file should at least give those some chance against the larger companies and their banks of lawyers.
I believe something has to be done to reduce the backlog of patents within the patent office, from letting the patent office keeping it's fees to first to file, if that helps the situation.
As a small business, a patent not being approved for over 3 years after it is filed tilts the playing field toward larger companies more than first to file.
I'm more upset the bill doesn't include letting the USPTO keep it's fees to reduce the backlog than anything else. If it's self sufficient, a rarity in government, reward it and let it grow to it's job correctly.
Ideas cannot be patented. Only the embodiment of the idea is patentable. Without that, no IP protection can be obtained and no exclusive rights accrue to you. US patent law does NOT require a physical prototype before patents can be issued (which is why many people think they can patent ideas). BUT...the patent application must describe the invention with such detail that others in the same field as the invention can make and use (embody)it.
If the actual inventor filed late, how long should that be after the person who filed first? A year? More? The USPTO partially resolved this question in 1995 by allowing for a Provisional Patent Application, allowing the filer to hold their place in line for 12 months, i.e. essentially a longer caveat.
A provisional application can never become a patent. It must be changed to a non-provisional form first and then (and only then) will the patent office review the submission for its technical content. The non-provisional application must describe the invention, have at least one claim listed, and at least one drawing of the invention.
If someone filed first with the knowledge that any one at ANY time years later could file (and possibly prove first embodiment) what would be the point? In this case, assuming one is very good at keeping trade secrets (Coca Cola?), I would agree that using the Trade Secret approach would be better.
I would also agree that patent applications should be filed only when the filer has every reason to believe they are the first inventor, rather than just file on the possibility that they might get something patentable. This requires an even better search of prior art than often the patent reviewer does. You can have in house or external patent attorneys do this. For the lone inventor it really can be done without large attorney fees but it takes time to do the proper research and ensure you have met the patent office guidelines for submission of the invention, claims, and drawings.
I am against the first to file simply because it is not right to give an advantage to those with money or an army of patent attorneys. There should be a way for the actual inventor (ie the person who first thought it up) to be the owner of the idea. I think this is just possibly a "give away" to the patent attorneys. The motto would be: "File Early and Often". This would be worse, we need real reform.
I'm leary of first to file. That forces all to file simply in self defense when they might prefer and otherwise be better off following the trade secret approach. First to file isn't fair when number 2 can establish priority; perhaps it could be a tie breaker but otherwise its just job security for patent attorneys
The "first to file" requirement is important. Alexander Graham Bell filed his patent application for the telephone just hours before his competitor Elisha Gray filed a patent caveat on a similar device. The patent caveat was essentially a 90 day hold on the processing of a patent application to give the filer of the caveat time to complete their application.
The situation ultimately was litigated, but because Bell's application was the 5th entry that day and Gray's caveat was the 39th entry that day, and because of minor differences in a caveat 'application' and a regular application, the patent office awarded Bell the patent and did not honor the caveat.
Caveat's are no longer allowed.
Excess funds of the PTO should be used to improve the quality of the claims and prior art reviews thus avoiding granting overly broad claims.
I agree with chanj. Somehow, we need to find a way so that organizations and individuals from enterprise to small shops must have efficiency of service in regards to application filing and processing. In addition, it's important for inventors and small start-ups to get the interpretation of the bill to best understand the implications so that we can all participate in this debate. It's not far to only have special interest groups and lobbyist with both time and money to participate. Are there any individuals or organizations who can help with this cause on a non-partisan basis?
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