Guest Post: An Empirical Exploration of First-to-Invent Versus First-to-File

Guest Post by Polk Wagner, Professor of Law, University of Pennsylvania Law School

One of the most-discussed and controversial provisions of the patent reform bill currently pending before Congress is the change to the United States' venerable first-to-invent patent priority rule.  Surprisingly, even as as we stand on the cusp of the broadest set of changes to the US Patent Law in two generations, virtually no empirical analysis has been conducted on the potential impact of this change, particularly on individual inventors.

In a new paper by my Penn colleague David Abrams and myself — Priority Rules:  An Empirical Exploration of First-to-Invent versus First-to-File — we seek to shed some light on this question by exploiting the same rule change in Canada as a natural experiment.  After collecting data on over a million patent grants in Canada and the US, we use a difference-in-difference empirical framework to estimate the impact of the priority rule change on small inventors.  Our main finding is a substantial drop in the fraction of patents granted to small inventors in Canada coincident with the implementation of first-to-file.  The overall policy implications depend on the relative value of inventions by small inventors, but the results do reveal that, contrary to the conventional wisdom, a change to first-to-file is not free — it is likely to result in reduced patenting behavior by individual inventors.

The complete paper is available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919730

76 thoughts on “Guest Post: An Empirical Exploration of First-to-Invent Versus First-to-File

  1. It’s true that the prospect of switching to a first-to-file patent regime has produced copious rhetoric, but not a lot of solid data. This paper corroborates the claims of many that this patent reform bill is bad for small inventors… though it’s also possible that Canada has relevant factors not present in the U.S.

  2. My comment got wacked. Ill try again It looks like another theft method has been established by reform reguarding blayth dole theyre trying to make it so universities can steal whatever they want from pto files for themselves in the as passed version I think? This needs language reguarding comperative bidding for development rights and the non ownership for government at least outright they need to devide the pie fairly or disincentive to invent runs rampant.33% 66% sounds fair.

  3. And another thing this brings to mind…. The Man that had a dream. And then there was the Man that also had a dream… Relative.. After opening my Microsoft express Picture Port, and the mindset it relates to. It is a FACT. Women and Blacks in this Animals mind don’t exist as real people.

  4. I find it amazing that someone can add images into the very beginning and very end of my Microsoft Picture Express paper port. Similar to rewording what I have written in my Paper port. To bad though, when I open the racist one it opens. But when I try to open the one called Suzzannah only a Disc plow opens. And when I try to open the one that says a Womans Place it too only opens to a Plow.
    And this brings to mind a Song. And if the Song is not the message,…. Do what Lawyers do.

  5. In these columns, tongue in cheek, years ago, I lamented that the only thing preventing Canada, and even the USA, joining the EPC is the provision in it about new members which states that membership is open to any other “European” State.

    A former member of DG5 used (prior to EPC 2000) to suggest amending the EPC by deleting “European” from that Article. I think many Europeans were wary of that idea.

    But perhaps Canada can be seen as a honorary European?

  6. (Sorry for the multipart reply. For some reason TYPEPAD doesn’t like one of the paragraphs, and I can’t see why. I left it out.)

  7. Of course, the representatives protest. It sometimes boils down to Alice’s dialogue with Humpty Dumpty…

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master that’s all.”

    Returning to Canada, here’s something I saw in a book:

    However, there are still considerable differences between practice, procedure and substance in various national laws throughout the world. When Canada introduced amendments to the Patent Act in 1987 it changed its laws fundamentally, ignoring much of the philosophical basis for its patent law, including the concept of granting the patent to the first inventor to have invented an invention, relying henceforth on granting patents to the first inventor who had filed an invention.

    (…)

    Nevertheless, the provisions of the 1987 Act have brought Canada’s patent laws into closer harmonization to the laws which exist in Europe, especially those which are members of the EPC. At the same time, Canada distanced its patent system from that existing in the United States, its major trading partner.

    (Robert Mitchell, “The Role of the Patent Office in Canada and the International Patent System”, in “Patent Law of Canada”, Carswell, 1994)

    That Horrible Hideous “H” word… Was this a pure coincidence that the new law showed similarities with the still new EPC?

    How about enrolling Canada as an EPC extension state, or even as a full member? I think the case can be argued and would be mutually beneficial, but the times are not good now for such proposals.

  8. I did occasionally see works of art, patent haikus, where each and every term in the claim had its importance. There the job is to carefully take the clockwork apart and defuse the device. A silver bullet document also does the trick, but it must be found. I could recognize the paw of certain drafters just by looking at the style of the claims without even checking the cover. (And some reps must have surely cried “oh no, not HIM again” when they discovered my communications).

    There is also the rambling, verbose, empty, claim, from which you tediously strip away all the fluff to lay the poor thing bare for all the world to see.

  9. One-liners can provoke guffaws when delivered on a stage, but in the quiet and isolation of an examiner’s office they’re not too funny. It seems to me that certain applicants make it a virtue of filing inanely broad claiming. Lack of novelty is not a problem. It does bring plenty of tactical advantages. The procedure is lengthened; the competition is uncertain of final scope of the patent; the applicant can carve the scope of protection at a point in time where he finally which way the market is going; and it saves fees.

  10. And there was me, striving to reach a one line claim, as the acme of patent power to the elbow of my client.

    I bet that for all your efforts you never achieved a claim as concise as claim 1 of US3156523. ;-)

    Is it a scientific discovery excluded from patentability, or allowable “Stoffschutz”? It’s certainly not something I could have decided off-hand.

  11. More of the attroticies of this bill like the provision about Claiming to have invented independantly even though the odds of this happening are astronomical are designed to steal invention from the true inventor instead of my methods of perfecting inventorship.Also the section about seizing intellectual property created on job when the inventor is under obligation is unconstitutional because it makes no determination how the agreement was obtained duress signatures are legalized in all situations.This bill favors big business in everyway so now they wont be getting the 200 per year top conceptions including medical breakthroughs because of 40 different attrocities not corrected or added.

  12. First to file or first to invent. The question is why the question is not how to obtain the most perfected methods of inventorship determination. Why would they want something so simplified and intentionally defective as this when ive proposed all kinds of improved methods.
    So does this mean that the good methods of determination of the past are now canceled like invention clusters and improving on the patent between fileings.So this means that for the sake of european compatable system we dont care to advance the patenting system to bring it into the 21st century. This only brings us in line with 1980s with my canadian patent system improvements The commitees brutally retartive disconcern for inventor imput is costing us our lead in inventing.

  13. I realize that Classen has gotten everyone excited, but I would be interested in any rebuttals to this issue.

    Malcolm? Leo?

  14. Why is it not the case that the Constitution requires the government to grant patents to ALL inventors of an invention, whether they apply collectively or individually? It seems to me that both first-to-invent and first-to-file are unconstitutional in the context of independent invention.

  15. So, according to these authors, the more words in the main claim, the higher the “quality” of the patent with that claim. Interesting take on “patent quality”. Interesting what you can get out of raw numerical data.

    Having just been referred to the Classen opinions from the CAFC panel, I have a suggestion for a further and perhaps even more interesting bean-counting “patent quality” project for the authors namely, look at the incidence of dissent judgements in patent appeals. The more numerous the dissents, the worse the “quality” of patent law.

    Is “quality” in academic papers on patent law going up or down, just at the moment?

  16. Wow. I’m impressed. I just want to add that the introduction of annual maintenance fees on patent applications pending at the Canadian Patent Office will (I think) have a disproportionate effect on private inventors with apps pending. Having to decide positively, each year, to pay the PTO yet another fee, just to keep the app pending, puts pressure on the capacity of private individuals to make rational decisions.

    Overlying that is the different perception private inventors have of patent law. Ask him who invented it first and he will retort “I did, of course”. But ask him who has filed first at the PTO and he will concede “I dunno. I suppose some wicked corporation might have got there already”. How about that to explain any lesser inclination of private inventors to file, in First to File jurisdictions.

    BTW Roufouse, have you yet found the quantity the authors of this Paper measured as an indicator of “patent quality”. You won’t believe it. My flabber was totally gasted. It is the number of words in claim 1. More words denote more “quality”. If this is a generally accepted measure of patent quality in North America, in boardrooms, on Wall Street, it might explain the “quality” we see in US-drafted claims presented for examination at the EPO.

    And there was me, striving to reach a one line claim, as the acme of patent power to the elbow of my client.

  17. Your own post seems to suggest that the real reason may that Canada did not adopt a grace period. I don’t know if that is strictly true.

    Mmmmm… lemme see… [flip] [flip] [flip]. Aha! There, found it:

    Loi sur les brevets L.R.C. 1985, ch. P-4
    Patent Act R.S.C. 1985, c. P-4

    Objet non divulgué
    Subject-matter of claim must not be previously disclosed

    28.2(1) The subject-matter defined by a claim in an application for a patent in Canada (the “pending application”) must not have been disclosed

    (a) more than one year before the filing date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant, in such a manner that the subject-matter became available to the public in Canada or elsewhere. [...]

    This definitely sounds like a grace period to me, even though a wise inventor would always be well advised to keep his creation to himself, lest he imperils his foreign patent rights, and possibly even affect his domestic ones.

    The rest of the “new” (1985) law is quite comparable to the practice in Europe, at least on paper, even though some lobbyists want people to believe otherwise. (“Canada’s patent system isn’t anywhere near to being equivalent to Europe or the U.S. I think that’s a major step that Canada has to take.” The drug companies can’t milk the medical systems nearly as much as they do in the US or Germany, but it would be a safe bet that the Harper Junta will see to that… I don’t think the issue lies with the granting of patents or the term of protection, but I digress.)

    Returning to the (draft) paper, the authors write: Our results show that the rule change does appear to reduce patenting behavior by individuals — though as noted above in Section IV.E, we cannot determine why [...].

    At least you must acknowledge their honesty in admitting that they can’t really prove anything much from their data.

    When I see the figures of the paper, I would be even so bold as to suggest that one can’t make any inference whatsoever, as the datasets on which they based their work appear to be flawed.

    Figure 1 shows shows the number of “Canadian Patents” by “Application Date”, with each bar representing a calendar month. The number of patents granted dramatically collapses from October 1989 onwards, and seems to enter a phase of terminal decline. I wanted to look at the data on which this plot is based, but alas, “Appendix XX” which could have quenched my curiosity is not included in this graph.

    I interpret the abscissa as being the filing date at CIPO without any consideration for priority, and the ordinate the number of patents granted ultimately granted which had been filed in a given month. (The text is not all that clear, really).

    I compared the plot with what I can gather from Espacenet. Canadian Patents published after 01 October 1989 receive a “C” publication code, regardless of the applicable law, so it’s easy to distinguish these from laid-open publications. Patents published prior to the cutover date received several types of codes, but then there are no other types of documents. Since more than about 20 years have elapsed since the period of interest, the fate of practically all applications is determined.

    Here are the monthly counts of grants for applications filed between Jan 1989 to August 1990:
    198901 1518
    198902 1681
    198903 1923
    198904 1757
    198905 1921
    198906 2111
    198907 1534
    198908 1858
    198909 3362
    198910 800
    198911 1028
    198912 1035
    199001 1025
    199002 1122
    199003 1262
    199004 1189
    199005 1191
    199006 1204
    199007 1109
    199008 1178

    The numbers prior to October 1989 roughly match those of the graph, including the “last call” peak for 09.1989, but with some excursions, for which no explanation comes to my mind.

    The problems really begin for the period covered by the new law, where the counts obtained from Espacenet are are MUCH higher than what is presented in the paper. In my data, the grants only briefly dip below the 1000 mark for October 1989, but quickly recover to the 1100-1200 level in about three months.

    Figure 1 of the paper on the other hand shows the monthly rate sinking to the 600 level by 1994. That just doesn’t make sense.

    Here are annual number of Canadian patent grants for the period 1994-1994. The first column is the year YYYY, and the second the number of grants. The EPODOC query which would return the post-1989 results would be something like “CA/AP and YYYY/AP and C/PN”. For the pre-1989 period it is sufficient to count all types of publications.

    The third column is an attempt to estimate the number of filings. For post-1989, this is obtained from the number of laid-open documents. For the prior period I record the serial number of the first application I retrieve for the last business day of a given year (Dec. 30 or 31), from which I subtract the serial number of a similar application filed one year before. The results are off by perhaps a few dozen counts at the most.

    YYYY Granted Filed
    1984 21181 26733
    1985 21299 28481
    1986 20631 26855
    1987 20247 29170
    1988 21634 31541
    1989 20530 xxxxx (TRANSITION YEAR)
    1990 13889 32531
    1991 13653 30991
    1992 13414 30078
    1993 12933 28241
    1994 13717 29664

    Without having to massage the data in a zillion exquisite ways, one can see that number of yearly filings before and after 1989 are essentially the same, around 30000 or so.

    Prima faciae, I can’t see any special trend in grants in the 1990 to 1994 time frame, or before. The average number of grants does drop sharply from about 21000 to 13500 mark in 1989. But why?

    The number of FILINGS did remain about constant around the cutover date. I see no evidence of applicants being discouraged by the new rules. What did change was the proportion of FILINGS which eventually proceeded to GRANTS, with the rate going down from about 72% to 45%.

    In view of the preceding I am skeptical of any conclusions drawn by the authors. They downplay the effect of the introduction of deferred examination. I would submit that a private, non-affilicated, inventor is much more likely to abandon an application during prosecution than a deep-pocketed megacorporation. I am unconvinced by the discussion on page 46, as they make no real effort to disprove the simpler hypothesis, while embarking on regression analyses based on god knows what (I can’t really see what they exactly did). What classification system was used anyway? The older, US-style, one, or the IPC which had been introduced in the period considered? I wouldn’t base any policy decisions on this paper.

  18. Paul, for the sake of argument only, assume that there is, in fact, a significant drop in small inventor filings in Canada.

    Why?

    Your own post seems to suggest that the real reason may that Canada did not adopt a grace period. I don’t know if that is strictly true. I searched the article, and there is no mention of the term in the article. However, information publicly available does suggest that Canada has a one-year grace period for personal disclosures not different in kind than our own proposed grace period. link to en.wikipedia.org

    I will agree with you that interferences are unimportant for your answer, as small fry cannot afford them and are not a factor in their decisions to invest or not invest in innovation.

    So, it might come down to the fact that the new FTF grace period does not protect against 3rd party prior art. If this is correct, and I think it is, we really need to consider this in determining whether the pass the pending patent legislation, or to fix it to provide a grace period in the new legislation that is exactly the same as the current grace period we all enjoy.

  19. It is arguable (and has been argued) that interferences are a red herring, given how few of them there actually are and that other effects (loss of swearing back in general, ability to delay filing while earnestly working on details of invention and maintaining the avialability of the earlier filing date, sharing of ideas without undue concern for impossible to prove derivations (the hope offered is a false hope), are more important behavior inducers for the small entity.

    The focus here on interferences leads down the wrong path.

    Morgan’s views are suspect to me.

  20. Getting back to the subject of the subject legal article (which is solely whether small inventors are disadvantaged in proving invention priority by going from FTI to FTF) here are some more issues and personal experiences:
    In my opinion, the answer is no, as to how FTI is handled in the U.S.. Not just because of the extensive Mossinghoff statistical interference study. When small inventors get into an interference with a large company, they are seriously disadvantaged. Small inventors can easily lose their patent claims to a 102, 103 or 112 attack even if they filed first, right in the initial motion period, which is before even getting to a priority trial, which is otherwise won most the time by the FTF anyway, the legally presumed first inventor. Most interferences these days result in one or both parties losing their claims before even getting into the priority contest. Not only don’t many unlicensed individual inventors have enough money, they rarely have attorneys with interference experience or a source of interference expertise advice.
    Chico Gholz, who has undoubtedly handled more interferences than anyone, has publicly indicated that more than half of interferences are for inter partes attacks [decided by APJs] on other peoples patent or application claims, NOT for a FTI priority of invention contest. A large company that can obtain interfering claims in time can use an interference to cancell claims of a small inventor that filed first.
    As cheap as initial applications are, especially provisionals, there is rarely an excuse for a serious small inventor to wait until someone funds [or steals?] his or her UNpatented invention. Furthermore, if small inventors can’t even afford to file after they complete their inventive concept, how can they afford an actual reduction to practice, which is the only way most interferences can be won? No interference can be won against a FTF party by someone who delays filing just waiting for a financial angel to appear, without any actual reduction to practice. Furthermore, their non-confidential disclosures to financers have destroyed all their foreign patent rights, making their invention worth that much less to any financers. Serious venture capital people ask about patent protection before even considering funding. If the inventors cannot afford even a provisional patent application, how can they afford the kind of serious business plan proposal that venture capital people expect to see? [Not to be confused with source code that might be maintained as a trade secret.]
    Plus, true FTF is not being proposed for the U.S. There will still be a one year grace period from any public disclosure of the invention by the inventor(s), and a derivation protection system.

  21. The Contrarian arguments are better.

    Since “Patents on human organisms, of course, are already banned,” the legislation must then be directed to something else and Leopold’s position absolutely fails.

    Further, not only is “there is nothing in the congressional record to suggest that Congress intended to ban patents on pharmaceuticals. Nada. Nothing” – there is nothing in the congressional records to suggest that Congress did not intend to ban patents on pharmaceuticals. Nada. Nothing. The word “pharmaceuticals” is not used, merely because the ban is wider than just pharmaceuticals.

    And precisely because there is nothing, the plain words of the statute – meaning more than existing law – will be held.

    And the plain words themselves? “Directed to” is a phrase that merely means the same as to “refer.”

    Main Entry: refer

    Part of Speech: verb

    Definition: concern, apply

    Synonyms: answer, appertain, be a matter of, be about, be directed to, be relevant, bear upon, belong, connect, correspond with, cover, deal with, encompass, have a bearing on, have reference, have relation, have to do with, hold, include, incorporate, involve, pertain, point, regard, relate, take in, touch.

    As there is nothing in the Congressional record to limit the meaning (Nada. Nothing.), the full meaning will be law.

    Pretty simple stuff indeed – just not the same simple that you think it is.

    One of the staffers in a pharmaceutical heavy state is going to have a light bulb go off and have a quiet word with the Senator…

  22. Agreed…virtually 100 percent. The only thing you haven’t pointed out here is that much of this has resulted from the lobbying efforts (i.e., dollars) of huge corporations. And – yet – somehow we’re supposed to believe that these new laws benefit small inventors and start-ups (i.e., the competition for the corporations behind the push).

  23. True, but this ex parte reexamination proceeding is solely for use by patent owners, and provides no way in the statute itself for fraud to even have to be disclosed to the PTO. The patent owner is certainly not going to volunteer its fraud activities to the PTO. Furthermore, until after the claims are finally rejected, how will there be a “but for” basis for the PTO somehow even raising it?

  24. Totally disagree. As just one example, if enacted, there will be huge battles over the meaning of “organism” (e.g., does this eliminate gene RELATED patents, etc.). There could also be fights over NIMBY’s interpretation of the wording.

    Disputes over interpretation are what patent lawsuits (or any lawsuit really) are made of, and these changes throw a huge wrench into existing case law (making uncertainty certain).

  25. I have read the paper and others and am convinced the proposed changes to patent law provide no benefit over current patent law. The message which is apparently lost in this dicussion is that ** no one ** has provided a true economic analysis as to the impact of the changes promulgated by this legislation.

    I for one believe this legislation is solely being promoted for political reasons without a true understanding of its impacts on the US economy. As others have noted previously, much of purported deficiencies in the current law have been addressed by the courts.

    Moreover, arguments concerning interferences are misplaced… these are few and far between and usually are not encountered by individual inventors.

    With the likely removal of the USPTO funding provisions, this legislation provides no benefit as a whole to the US economy.

  26. Econ 101 – the more yo printz, the less itz worth!

    Right. So we should have stopped printing additional money back in 1821. Econ for kindergartners is more like it.

  27. While I appreciate seeing a critical comment that is based on the actual Bill [rather than compeletely factually unsupported hyperbole allegations] the above paragraph provision cannot be read out of context. It is ony a part of a new reexamination system that will allow anyone to completely whitewash and eliminate any and all inequitable conduct issues ex parte [a great boon to small inventors and trolls, along with the elimination of all best mode defenses].
    Futhermore, the PTO alrady has the ability to make such a fraud referal to the AG, has done so only once as far as I am aware [for perjury in an interference], and is highly unlikely to do so.

  28. Because there is nothing in the congressional record to suggest that Congress intended to ban patents on pharmaceuticals. Nada. Nothing.

    Patents on human organisms, of course, are already banned. The point of the statute is to ban both patents that, on their face, are directed to human organisms (i.e., “A modified human, wherein …”) or could be construed to encompass human organisms (i.e., “An engineered primate, wherein …”.

    Pretty simple stuff.

  29. I’m not Malcolm, but I’ll take a shot. It’s because the provision talks about claims that are directed to a human organism, not claims covering substances that are directed to a human organism. There may be reasons to object to this provision, but I agree that there’s no way that it can reasonably be interpreted to outlaw claims to pharmaceuticals.

  30. This is sort of interesting as well:

    “(e) FRAUD.—If the Director becomes aware, during
    the course of a supplemental examination or reexamination proceeding ordered under this section, that a material
    fraud on the Office may have been committed in connection with the patent that is the subject of the supplemental examination, then in addition to any other actions the Director is authorized to take…the Director shall also refer the matter to the Attorney General for such further action as the Attorney General may deem appropriate. Any such referral shall be treated as confidential, shall not be included in the file of the patent, and shall not be disclosed to the public unless the United States charges a person with a criminal offense in connection with such referral.”

    Some may argue that this is a good thing, but it certainly steps up the consequences of inequitable conduct.

  31. Thanks for this study. Although it seemed to me intuitively obvious that this legislation was not good for small inventors, I would not have guessed that the effect was so profound. It is always great to have one’s intuition confirmed or proven wrong with actual statistical evidence. Of course, it would be nice if the legislators actually took your study into account prior making these bills the law of the land. I was wondering if this study was inspired your survey?

  32. All pharmeceuticals are “directed to a human organism.”

    That is the dxmbest thing I’ve read here in the last ten minutes.

  33. That’s certainly an argument a party could make.

    The interesting and scary thing to me as I have not seen one discussion of this particular proposed provision by ANYONE. And yet, it’s in the version of the bill which is expected to be accepted by our legislature this month. If you’ve looked and you don’t see it, it’s because it’s in the “manager’s amendment”.

  34. Congress is “selling” this proposed bill as something which will increase efficiency, decrease litigation, etc.

    The better proposal is to leave the current Patent Act the way it is except for resolving funding issues, thereby providing a mechanism for examiners to be better trained, etc. Almost all issues pertaining to patents which (arguably) shouldn’t have been issued boil down to only one thing – ineffective examination and poor application of otherwise good patent laws.

  35. All pharmeceuticals are “directed to a human organism.”

    Tomorrow is a lot closer than certain people may have thought.

  36. Have you any basis for your assertion that I’m making things up?

    Only the assertion of yours that you have not carefully prepared your comments, and just dashed them off.

    Isn’t that enough? Are you claiming that you did not make up what you said? If so, let’s see the support. Do.

  37. If, for some reason, you wanted to multiply the amount of patent litigation, what better way than this?

    Competition: Who here can come up with a better proposal?

  38. Anyone noticed this in the bill?:

    “(a) LIMITATION.—Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.”

    Certainly this provision can be interpreted many different ways and would likely spur on at least another decade of litigation in the biotech world (if actually enacted).

  39. the best way to get yourself out of a hole is to dig yourself out

    Sometimes that’s true, particularly when you know that there is an extendable ladder immediately below the surface, which is the exact metaphor for the economy.

    Again, anyone who believes that the US deficit is the reason that the US economy sxcks right now is simply ignorant.

  40. I looked at it though. Sorry to say, I didn’t fancy it much. Just didn’t enjoy first acquaintance with the thing.

    Do you look forward to reading it thoroughly? Me not.

  41. I suppose for academics the old rule still applies: publish or die. However irrelevant the data, if you can use it to get a snappy topical sound-bite conclusion, your career is not dead yet.

    And if the Paper sparks off an impassioned debate, and gets cited all over the place, so much the better.

    You scratch my back and I’ll scratch yours (or, as they say in Germany, One Hand Washes the Other). Will Dennis research now get published on the Abrams/Wagner websites, I wonder.

  42. Look, I haven’t read the Paper yet but one thing already jumps out at me.

    Promising beginning to a comment if I’ve ever read one.

  43. ” On the other hand, a trillion dollars in government stimulus would have a great improving effect on the economy.”

    Lolz! Because the best way to get yourself out of a hole is to dig yourself out!

    “And we could afford that easily.”

    To paraphrase Jay Leno “print all you want! We’ll print more!” Econ 101 – the more yo printz, the less itz worth!

  44. Maybe there is not enough data. Maybe this study uses the wrong data or analyzes it in the wrong way. But at least the debate is about evidence, rather than anecdote and conjecture.

    It is a pity though that it is probably all moot as patent reform is likely to become law soon as a result of lobbying and political contributions rather than any serious consideration of the policy implications.

  45. Is that all you’ve got to add? Have you any basis for your assertion that I’m making things up? Or did you just make it up?

  46. it is likely to result in reduced patenting behavior by individual inventors.

    Excellent news. Maybe that reduction will offset all the patenting behavior by individual inventors that does absolutely nothing to promote the progress in the useful arts. You know, trolls and similar types trying to “make a lot of money off the Internet”, inventing new “paradigms”, etc.

    I can guarantee you this: it will zero effect on the US economy or the pace of innovation. On the other hand, a trillion dollars in government stimulus would have a great improving effect on the economy. And we could afford that easily. But oh how the txxxbxxgxrs would cry (as they gladly take the money).

  47. 18 month publication means ownership of successful inventions will likely change prior to issue.

    Making things up as we go along…

  48. P.S. Furthermore Rule 131 declarations cannot even be used to establish the article subject “priority of invention.” The Rule itself says that it cannot be used against any prior application “which claims the same patentable invention as defined in § 41.203(a) of this title” [a definition much broader than identical claims] and says that interferences are required instead.

  49. Sorry that my comments are not as carefully prepared as the content of an academic paper but, instead, just dashed off to stimulate debate. When I’m not blogging, I’m still trying to earn a crust or two.

    I had thought, but omitted to mention, that there is a world oof difference between Canada and the USA, when it comes to the power of a patent in the home market. How much money can an inventor make out of the US market? And how much out of Canada? How many US individual inventors file in Canada? How many Canadian inventors file outside Canada (notably at the USPTO)? Foreign filing means 18 month publication. 18 month publication means ownership of successful inventions will likely change prior to issue.

    Another thing: in the USA there is an incentive NOT to reveal ownership interest to the Patent Office. Outside the USA, and I suspect in Canada like anywhere else, there is an incentive on the owner of the app/patent to be on the PTO Register as owner. Does that skew the data, I wonder.

  50. Like we said…

    “patent reform”

    Just because they call it “reform” doesn’t mean it is.

    The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??

    Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. The bill will make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. Yet small entities create the lion’s share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.

    Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors.

    Please see link to truereform.piausa.org for a different/opposing view on patent reform.
    link to docs.piausa.org

  51. Haven’t read the paper yet, but I’ll put it out there, anyway:

    Wouldn’t it have been more meaningful to have considered patent applications filed BY independent inventors, rather than patent grants TO individual inventors?

    Abandonment or assignment can occur during prosecution.

    While abandonment could be affected by the switch to FITF (something also not discussed), assignment might not.

    ???? I guess I should read the paper before commenting, this thought just came to mind quickly.

  52. Max, it does not seem that the authors considered PCT app’s exclusively.

    I would venture to guess that the vast majority of patents GRANTED to individual inventors in Canada never go the PCT route.

    I think your conclusion suffers from a massive selection effect.

  53. Since Max is European, it might have more appropriately been written as “staid in his own home”

    (Sorry, Max!)

  54. This kind of academic paper seriously ticks me off. First they dismiss the Mossinghoff and other statistical studies of U.S. interferences showing that small inventors are actually disadvantaged by our FTI system by saying that: “the relative simplicity of the priority contests, typically only requiring a showing of an earlier date of reduction to practice, suggests that the complexity of the FTI system should not be a disproportionate burden on small entities.” [A statement displaying appalling ignorance of interference practice realities and costs].
    Then they make a comparison to the old Canadian FTI practice with obvious ignorance of the fact that that old practice only required evidence of mere prior bare conception to get behind someone else’s earlier filing date.
    Thirdly, even as to the use of Rule 131 declarations, not explained or discussed, there are no statistics that they are used more by individual inventors than any other inventors, [much less the low odds of their survivial in litigation] hence no support for the authors conclusions there either.

  55. an awful lot more self-delusion than there is common sense.

    You did not need to come on this blog to learn that – you could have stayed in your very own home.

  56. I learn on this blog, from contributions like the one immediately above, that there is in our world an awful lot more self-delusion than there is common sense.

    There’s no harm (and some good) in being reminded again of this. So, thank you Shilling.

    This Paper does nothing to enhance my opinion of academics, and their need to publish. Full marks to Dennis though, for publishing such stuff. It is such fun to read.

  57. I skimmed the article and based on the skim, I plan to read it. Looking at the numerous graphs of various data, it appears that that the authors have pulled together a fair amount of data to support their conclusions. It’s refreshing to see something on patent reform that is backed up with data, rather than opinion.

  58. That is some serious spin to come away withthe opposite message that the paper gives.

    Rather than “Look, I haven’t read the Paper yet” and inserting your deluded bias against the individual inventor…

    [pause for rant] (yes MaxDrei, we know your clientelle is not the individual inventor and yes MaxDrei, we know you take a sand against any competition to your interests, hence your anti-US patent leanings, and yes MaxDrei, the US is decidedly different than Europe in our celebration of the individual inventor, so NO MaxDrei, the traditional US style system was NOT a cruel deception on that treasured inddividual, but the vocal minority rantings would very much like to push US patenting to being a Sport of Kings, which is what HARMinization is all about.)

    …try to actually read the paper and understand that the message is that the Canadian historical example shows that their switch HARMED the types of entities that create the bulk of US jobs – the heart of the dogma being spoon fed the US Representatives and Senators who are pocketing the special interest money and telling their constituents that they are voting for this change to help the little guys.

    The little guys do not need this kind of help.

  59. Shock News from Abrams: Switching to First to File will have no Adverse Effect on “Patent Quality”.

    In other words, it turns out that the upcoming and much trumpeted “rush to the Patent Office” is not going to be harmful after all.

    Thanks academics, for that cheering message.

  60. Look, I haven’t read the Paper yet but one thing already jumps out at me. I mention it to stimulate the thread.

    The data used is that of granted patents. When individual Canadian inventors file in their First to File jurisdiction, 18 months later their efforts in the patenting pipeline are A-published (for all the world’s licensses to read and digest) but their PCT International Phase does not end for another 12/13 months. The successful ones will have transitioned by then into a corporate vehicle. Otherwise, the ongoing patenting costs are going to be beyond the resources of any sane individual.

    Thus, the individual Canadian inventors who struggle through to issue, still in their own name, are the deranged deluded failures. I’m glad there are fewer of such cases, under FItF.

    Some might say that FtI US-style, is a cruel deception the law plays on individual inventors, to milk them dry. See the musings, in a parallel thread, of the US patent attorney who declines to take candy from baby inventors. First to File gives deserving inventors better chances to make good money, as this Paper may well demonstrate.

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