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Archived updates for Wednesday, November 23, 2005

Who Wins in First-to-Invent Patent System?

In "Competition, Innovation and Racing for Priority at the U.S. Patent and Trademark Office," Linda R. Cohen and Jun Ishii, of the Department of Economics at UC Irvine, analyzed a random
sample of patent interferences to investigate the impact of patent policies on innovation
strategies, and found that

Like other critics, we do not find evidence that the system works to the benefit of
small inventors or firms. Small firms rarely avail themselves of the interference process. But if we assume that the winner of an interference is the first-to-invent, the results suggest that small inventors do not suffer from a filing disability. Alternatively, there is some indication that other groups do have such problems - both the u.s. government and u.s. universities, for example, are far more likely to enter our sample as junior parties, yet they win a reasonable share of cases, which suggests that both institutions systematically take longer to fie patent applications than do private firms and individuals. However, we need more data to establish the trend statistically.

In any event, the authors' data appears to support the argument that the first-to-file "Senior Party" usually wins the interference anyway:

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Blogger Lawrence B. Ebert said...

The fact that senior parties generally beat junior parties, and that larger entities generally beat smaller entities is hardly new and was discussed both in AIPLA town meetings and in print (e.g., see June 2005 JPTOS). The interesting point (that the Brookings authors don't discuss) is that many smaller entities were aware of these facts and opposed "first to file" anyway. Perhaps that ought to be explained. I discussed the idea that universities might not fare well in a "first to file" system in the New Jersey Law Journal in July ("Patent reform 2005: sound and fury signifying what?") H.R. 2795 does not seem to be moving too quickly at the moment.

November 25, 2005 7:12 PM  
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