UIA Letter to Congress on Patent Reform, Kappos & First to Invent
|Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: March 11, 2010 @ 6:24 pm
Earlier this afternoon the United Inventors Association, a 501(c)(3) not-for-profit founded in 1990 and dedicated to providing inventor education and support, wrote to Congress to set the record straight on the UIA stance on patent reform efforts. UIA Executive Director Patrick Raymond sent a letter to Senator Patrick Leahy (D-VT), who is Chairman of the Senate Judiciary Committee, and an identical letter to Congressman John Conyers (D-MI), who is Chairman of the House Committee on the Judiciary. The primary purpose of the letter, as stated in the letter itself, was to make clear that the primary mission of the UIA is to provide reliable information to inventors and not to undertake lobbying efforts. The letter makes clear that the UIA is “not involved in any campaign against this proposed legislation.” The letter goes on to explain that while some “coalitions” and “alliances” are claiming to speak “on behalf of all independent inventors nationwide,” they do not speak for or on behalf of the United Inventors Association or its membership.
According to the UIA letter, signed by Raymond and authorized by the Government Affairs Committee of the UIA:
While certain ad hoc “coalitions” and “alliances” have voiced their opposition on behalf of all independent inventors nationwide, the UIA would like to clarify that any inclusion of the UIA and its membership in such opposition is not based in actual fact.
Specifically, we are concerned that independent inventors may be portrayed as universally opposed to “first inventor to file” versus “first to invent”. Please know that our membership has not brought this to our attention, nor are we aware of any case of “interference” that resulted in the loss of patent rights by an independent inventor. And though we have not been able to scour every email, phone call or mail correspondence in our 20 year history, we nevertheless cannot recall such a scenario.
When reached for comment, Raymond explained to me that “by an overwhelming and large majority” the questions inventors ask when they contact the UIA relate to “who can I trust, what is my next step and where can I find funding or a licensing deal.” Raymond went on to explain that the clear focus of the inventors who reach out to the UIA is to gain information about “inventor friendly companies” an to get information and support that will “ultimately allow them to realize a return on their invention.” Other questions inventors ask relate to technical issues about signing into their UIA account or receiving the UIA newsletter, for example.
In my discussion with Raymond I explained to him that this UIA letter would likely become quite newsworthy because of the first to file issue. In fact, there are many within the independent inventor community who are quite frightened about moving from a first to invent to a first inventor to file system, and there are many who have an agenda that are, in my opinion, inappropriately fueling this fear and playing on it in an effort to derail patent reform. So the fact that the United Inventors Association has no record of inventors inquiring about or retelling stories of inventors losing rights in an interference is likely to become a part of the debate and dialogue moving forward. In fact, it will likely be picked up and used by those who both support patent reform and those who object to patent reform.
Proponents of patent reform are likely to seize on this as further confirmation of what the statistics clearly show, that first to invent provides little or no statistical advantage. As Director of the USPTO David Kappos has explained, “[t]he chances that a patent will be subject to interference based on a first to invent claim—that’s our current system—is .01%.” On the other hand, opponents of patent reform are likely to seize on this as further confirmation of their own views, arguing that no inventor has complained of losing rights because the first to invent system is there to help them and save them.
In my opinion, the argument of the opponents is disingenuous at best, and intentionally misleading at worst. The fact that it seems that first to invent should help independent inventors is indeed logical, but not played out by the facts. Furthermore, arguing that first to invent is essential but not talking about or even acknowledging the costs associated with prevailing in an interferences is rather ridiculous. In fact, simply based on cost it is ridiculous to believe that an independent inventor could ever engage in an interference and prevail. According to the a 2005 economic survey conducted by the American Intellectual Property Law Association (AIPLA), the mean cost of an interference through the completion of the preliminary motions phase was a whopping $417,130. The mean total cost of the entire interference was $656,306. See An Interference: What, When and How Much Does It Cost? (page 9 at bottom).
Exactly how many independent inventors can afford that? How many small businesses can afford it? Those arguing first to invent must be kept at all costs to benefit independent inventors are misleading independent inventors and using fear tactics to promote their own agenda. With this patent reform, which may not really do much to help the US patent system, there is still retention of the 12 month grace period, so exactly why are those who represent the interests of businesses trying to rally independent inventors based on a falsehood?
In any event, Raymond told me that he hopes that what is most newsworthy about the UIA letter to Congress is that the UIA is that they are “appreciative of USPTO Director Kappos’ outreach to the independent inventor community, and in particular, his concrete proposals to reduce patent pendency, extend the provisional period to 24 months, and create a new ‘micro-entity’ class with fees more tailored to independent inventors’ limited personal budgets.”
As Raymond explains, the issues Kappos is pushing, together with what the UIA is trying to do in terms of providing “reliable information supported by careful studies, certification to inventor-friendly firms and practical educational tools” strikes at the heart of what is most beneficial to independent inventors.
Oh how I wish the UIA mission and tax status would allow them to engage in lobbying. Alas, it doesn’t, which is unfortunate indeed. But at least the UIA strives “to keep inventing safe, rewarding, and fun,” which is no small task. Yet, I can’t help but wish that members of Congress look beyond the surface and inquire whether adherence to a first to invent system is REALLY in the best interest of independent inventors, or in the best interests of those companies large enough to be able to fund an interference proceeding.- - - - - - - - - -
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About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.