Monday, August 29, 2005

REP. CANNON MAKES APPARENT CONNECTION BETWEEN FIRST-TO-FILE AND TROLLS: Rep. Chris Cannon and Sen. Orrin Hatch came out this weekend to throw their support behind patent reform, and particularly behind first-to-file. One interesting thing I noticed about the reporting on this event in the Salt Lake Tribune, was that it seemed that Rep. Cannon is claiming that first-to-file is somehow intended to combat patent "trolls":

Cannon says reform is needed to counter the antics of "trolls" - people who search for ideas not yet patented and then steal the innovation before the inventor can lay claim to it. A key provision of the legislation would award a patent to first one to file for it - not necessarily the first one to come up with the idea or to invent a product. The proposed changes, in a House bill co-sponsored by Cannon, also tweak the law in other areas, such as "harmonizing" U.S. law with that of other countries and attempting to curb expensive lawsuits over infringement.

Now, either the reporting was kind of sloppy, or Rep. Cannon hasn't been fully briefed on the effect of the reforms he co-sponsored. First-to-file isn't so much about curbing lawsuits as it is a "gimme" to WIPO to show them that the U.S. is still keen to establish a "world patent" sometime in the distant future (say, like 50 years). This is the first time I've seen first-to-file being tied to reducing the frequency of "trolling" in the patent community. Even more bizarre was the defining of trolls as "people who search for ideas not yet patented and then steal the innovation before the inventor can lay claim to it." What the heck is that?

It is becoming apparent to me that the actual effect of first-to-file (i.e., reducing uncertainty over inventorship and reducing litigation cost) may become the opposite of what is being pitched to the public. Assuming that first-to-file reduces litigation costs, how is that supposed to reduce the number of lawsuits? Can anyone point me to an area of litigation where the number of lawsuits dropped once it became cheaper to take someone to court? Wouldn't this encourage contingency cases, since the monetary risk to plaintiff's attorneys becomes lessened?

The most bizarre comment of all by Rep. Cannon was his reply to critics of first-to-file:

Cannon suggests that critics of the reforms have "motivations that are not straightforward" and may, in fact, be trolls. Under the new legislation, Cannon says, "People who legitimately come up with ideas will have a much better and robust market and they can get paid better than they were before."

I have no idea where he got that from . . .

1 Comentário:

Anonymous said...

Lawsuits become fewer and cheaper because first to file simplifies them. There are fewer suits because under first to file a given party knows at the outset whether or not they will lose this issue. With first to invent, there may be a jury question. Under first to invent, a party with a 40% chance of prrevailing may bring suit. Under first to file, this party would know a priori whether or not they will win. The lawsuits are reduced by the number who know they will lose. Of those who know they will win, litigation is cheaper because proving a filing date is simpler than proving invention.

I'm not saying that first to file is better, but it is simpler.


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