Shifting to ‘first-inventor-to-file’ will dramatically affect the individual inventor, small firms and universities

Paul Remus

The Patent Reform Act of 2007, which has already passed the House of Representatives and is now being considered by the full Senate after receiving a favorable report from the Senate Judiciary Committee. It contains a number of provisions that will make it more costly to obtain and defend patents.

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Opponents of the change raise concerns that a first-inventor-to-file rule will encourage premature, and possibly inaccurate, technology disclosures in a race to the Patent Office. Opponents also note that such a race is particularly burdensome on individual inventors, small firms and universities.

A number of states have concluded that individuals and small firms are, in general, a significant source of innovation. These small entities also rely more heavily on the patent system than larger companies. Larger companies have alternative means to develop and protect their technology. These include trade secrets, ready access to markets, trademarks, speed of development and goodwill. Small entities do not have the ability to use these means.