The results can be costly, complex and time-consuming. When at least two people file an application on the same invention, the Patent Trademark Office conducts a trial, known as an interference proceeding, to determine the first inventor. Eliminating interferences and aligning the United States with the rest of the world are the main arguments for switching to a first-to-file system. But opponents argue the change would harm solo inventors and small companies, which account for about 45 percent of patent applications.
Here’s why: The new system would create a race to the Patent Trademark Office, and the entity most likely to win is the one with the most resources—corporations with deep pockets. They’re less concerned about filing fees and are more likely to file an application even though the commercial benefit of the technology may be risky. Small businesses, on the other hand, will wait to file until they’re certain a market exists for the product before committing funds for filing fees.
With 1.6 million active patents in the United States, the possibility of infringement has led to more litigation, particularly within the technology sector. Microsoft Corp. is among larger software developers that support a first-to-file system because the company is often forced to fend off infringement suits brought later by smaller competitors. Unlike the auto industry, for instance, in which large sums of money are necessary to produce an innovation, an independent inventor sitting at his kitchen table can develop software.
Some of the litigation stems from what is known as “patent trolling,” a term used to describe an individual or company that holds a patent with no intention of marketing an idea or making a product.
Indeed, from 1996 to 2006, the number of patent applications more than doubled from about 200,000 to 450,000, according to the PTO. Nearly 1.1 million applications are currently pending, and 760,000 of those still await first action. The average time it takes to get approval is 32 months.
To shave the backlog, the PTO hired 1,200 patent examiners in 2007 and has plans to employ 1,200 more examiners this year. Compounding the problem of delays is that the tedious work leads one of every two examiners to leave the job within the first year.