Mr. Lawrence Cohen
10960 Wilshire Blvd Suite 1220
Los Angeles CA, 90024
I am commenting on the pending revisions of the US patent law. For over 40 years I have been a patent lawyer. I worked for some of the world's largest companies, and in private practice for numerous small companies and individuals. I think I have a good perspective on the patent system and the proposed changes.
I greatly oppose the change from first to invent to first to file. The first to invent principle is the jewel in the crown of our system. It is based on ultimate and unequivocal fairness. It is often mentioned that we should conform to the law of other countries. What a shame to do that and give up the most fair concept in our law, a signal to the world about our views that fairness is to be favored over bureaucratic convenience.
Arguments have been made in favor of first to file, but they hold no water compared to the basic fairness of first to invent. One argument talks about harmonization. That is a red herring. There is no disharmony in our first to invent system. Foreign inventors get the same rights as US inventors; and there is no conflict with countries that use first to file. The application of these diverse principles lives easily side-by-side. Another argument relates to the burden of interference proceedings when there is a dispute about who is first to invent. But interference proceedings are very rare and usually are settled without much litigation.
In my over 40 years, I have been involved in only two interferences in my general representation of inventors (I do not seek out litigation as a specialty). But, the first to invent rule does have a benefit to inventors, in the USPTO prosecution of patent applications. That is controlled by section 102(e) of the patent law that allows an applicant to void a reference against his application if he can establish a date of invention before the effective date of the reference. This is a valuable help to inventors, and is the primary way that the first to invent rule is implemented. It is easy and inexpensive, and it works.
There are some other problems with the proposed law. One of them is the proposed opposition proceeding to invalidate an issued patent. This will create an expensive procedure that the wealthy can use to attack the less affluent. It does the opposite of simplifying; it very much complicates and weakens the system by throwing into doubt the validity of every patent. Now we have a strong presumption of validity, which is good for the system because it encourages respect for patents. The opposition procedure throws all that out.
Another problem is the weakening of the injunction rule. Needless to say an injunction is a powerful disincentive to a party who wants to ignore a patent. Absent the threat of injunction, the more powerful party just has to go through the litigation and if they lose, they will just pay what they would have paid had they taken a license. The limitation on injunctions puts the little guy simply off the map.
Many very valuable inventions are not made in the labs of giant corporations, but are made by small emerging companies and even individuals, whose only hope for a reward is by licensing. The goal of proponents is to disadvantage the less affluent.
In some respects I see that Democrats might see the patent system as contrary to liberal concepts because it does create a monopoly in a sense. But that is wrong. First, because it is not really a monopoly, rather it is an incentive for additional innovation. Our history has very little experience that the interest of individuals or the public at large have ever been compromised by the patent law. More importantly the proposed weakening of the patent law is clearly tilted in favor of big corporations with money to spend over small companies and individuals. The opposition and injunction proposals are very obvious examples of it.
But first to file is more subtle. A wealthy company can file an early patent application, and more as a product develops. But the small company can't afford that and has to wait until close to commercial production. By that time, obtaining a patent will often be precluded.
Please enter your strong opposition to the proposed legislation. Please appreciate that it is a quest to weaken the patent system in a way tilt it in favor of the mighty.
Lawrence S. Cohen
10960 Wilshire Blvd.,
Los Angeles CA, 90024