The Professional Inventors Alliance USA is freaking out over a proposed patent rule change, to grant patents to first-inventor-to-file instead of first-inventor-to-invent. According to the PIAUSA’s President Ron Riley, this “unconscionable” and “unconstitutional” procedural change will “strip individuals of their constitutional rights and kill American invention”.
How might these dire consequences occur?
The first-to-file system would no longer reward American inventors for their original ideas, designs and years of hard work. Instead, large companies – even foreign companies – that somehow learn of an idea that was not theirs to begin with could file before the actual inventor and claim the patent rights.
Well — I’m sympathetic to that argument, not particularly wanting large companies to be able to swoop in on little-known inventions. Seems like the problem might be solved by a simple and inexpensive notice-filing system akin to the trademark intent-to-use application. (Of course that would create additional problems, like comparing the notice-filing application to the ultimate application….)
But still, what caught my eye, besides the absurdly extreme language, was the description of first-to-invent as a ‘constitutional’ right. In Art. I, Sect. 8, Clause 8, the Constitution grants to Congress the exclusive Power
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The first-to-file might surely exclude some inventors from patent protection. But so does the first-to-invent system, which excludes any independent invention that cannot be proved to have been reduced to practice first or which happens to have been invented seconds later. Indeed, if I correctly recollect my patent priority timeline, the timeline was full of rather arbitrary lines in the sand about what can be proved when to establish priority. Each one of these points in time offers an opportunity for actual inventors to lose out (albeit to other ‘actual inventors’). So there currently are plenty of actual inventors who are deprived of the rights to their inventions, but somehow first-to-invent is suddenly a ‘Constitutional’ right.
Oh well. Shifting from first-to-invent to first-to-file is ultimately just a convenience for the PTO and brings the US into line with most of the rest of the world on that matter. Just logically, and also to avoid any grabby-big-business problems, I too would probably prefer first-to-invent. But with so many other more serious problems with the patent system, and so many other ways for grabby big businesses to screw their employee inventors, I can hardly get worked up about a shift to first-to-file.