Author: Delain Law Office

According to the Wall St. Journal today:

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“Although the office has traditionally operated with a backlog, the pile has increased in recent years. Even though there has been a drop-off in applications during the recession, it hasn’t helped examiners catch up. One reason is that overtime has been cut, so examiners spend fewer hours processing applications. What’s more, because the office is entirely funded by user fees, the dropoff has left it with a budget gap.

“Patent rules haven’t changed significantly in five decades, despite many attempts by Congress.

“This year, a fragile compromise between pharmaceutical and technology companies on a Senate bill could make a difference. The bill would institute a “first-to-file” system that would award patents based on the date an application is filed, rather than on the date of invention was made.”

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A first-to-file patent priority system. Wow.

That would match with much of the rest of the world’s patent practice, so it would go a long way toward harmonization of worldwide patent law. It is, though, a BIG break from the way the US has traditionally handled patent application priority, based on a first-to-invent system. Here’s the difference:

A first-to-file system is a race to the patent office. Whoever files first wins. The actual date of invention is irrelevant.

A first-to-invent system grants patent rights based on proof of the date of invention. The date of filing is the presumptive date of invention, but the inventor, should an application be filed by someone else on the same invention, has the opportunity to prove that she made the invention first and worked diligently on the invention until the date of filing. This is called an “interference.”

I didn’t know that there were so many interferences before the USPTO that instituting a first-to-file system would make a difference in the patent application backlog. While I’m all for a first-to-file system for reasons of international patent law harmonization, I think it’s folly to believe that instituting a “first-to-file” system would make the least dent in the patent application backlog.

So prove me wrong.

The link for the video, in case it doesn’t show up, is here.

UPDATE: Microsoft Appeals Word Patent-Injunction Case – WSJ.com.

As well they should.

Watch for the case to get argued before and decided by the US Court of Appeals for the Federal Circuit, which holds exclusive jurisdiction over patent cases.

The district judge’s ruling does seem to me to be a bit overbearing: Microsoft can’t sell Word because a part of it infringes a patent held by a Toronto-based company called i4i. 14i now has a permanent injunction against Microsoft granted earlier this month.

Your Honor, wouldn’t an enforced license and a hefty money judgment have done the job without threatening the software base of thousands if not millions of companies worldwide who rely on Microsoft Office products to get their own work done?

Don’t get me wrong here: I in no way approve of or endorse Microsoft’s aggressive patent infringing policies. However, Microsoft products are heavily used and therefore needed in the business world, and this ruling potentially disturbs many, many other businesses which are already struggling in the current economy. Requiring businesses to switch software midstream could spell collapse for many small and medium-sized businesses that simply cannot budget for the conversion from Microsoft Word to a new word processing system when the time comes to upgrade (for you know that Microsoft will sue in patent anyone who puts any code that in any way resembles its code for reading Word documents into word processing software…).

And the wheels on the bus go round and round…