First to file patent rule may discourage making public inventions beneficial to humanity

By Glen Wallace


The following is my response to an article in the Star Tribune about the new first-to-file provision in the patent application process:

Kalinsky states regarding the new first-to-file provision: "For the garage inventor, it changes little. He or she does what they’ve always done. You come up with an idea, you raise funds and you file for a patent."

What if the garage inventor has a hard time raising the funds for the application process but still wants to utilize his invention for a small home-based business?  Could some big corporation then reverse engineer or just copy the invention utilized in the garage inventors product?  Could the big corporation that does have the funds and expertise to file and acquire a patent on the garage inventors invention, then turn around and file a patent based on what they copied and then demand compensation from the actual inventor, the little guy, for patent infringement?  I'm not an attorney, but if the criterion is really first to file, then I don't see any reason why a corporation wouldn't be allowed within the law to sue the actual inventor in such a scenario as I describe above.  While the costs for provisional filing may be low for a large company, those costs could be considerable for the garage inventor or home based small business.  Therefore this new act just gives further advantage to those already with the bulk of wealth and further disadvantage to those already without.  I thought patent protection exists to incentivize the creation of inventions that help society.  While I question if patents have ever has been a creative incentive, I would say this first to file development if anything is a disincentive to making a beneficial invention public because unless the inventor is willing to wade through the lengthy and costly patent application process, they may prefer to keep their invention secret, depriving society of its benefits, in order to prevent some wealthier interest from stealing the idea and turning around and suing the true inventor in such a scenario I had described above.

The so-called America Invents Act that created this "first to file" rule has about as an appropriate title as the Patriot Act.  A better name would be 'America Files Act' or 'America (Patent) Trolls Act.'   This is an act that puts not inventions first put the legal machinations surrounding inventions first.  I can envision scenarios whereby individuals might come up with a new process or invention that unbeknownst to them have some value as patentable ideas.  Those individuals however, out of the goodness of their hearts, in an effort to help others, could publish a youtube video of their ideas that the inventors believe might assist others in making their lives better in some way by solving some problem they're having.  But at the same time there could be some patent troll firms searching through youtube videos with the sole goal of finding such patentable ideas made public that have not yet been filed yet with the US Patent Office.  The troll firm then does the filing, thereby being the first to file and so once the patent is granted the patent troll firm can now extort money out of the real inventors because they are infringing on first-to-file patent troll firm.