Guest Post by Polk Wagner, Professor of Law, University of Pennsylvania Law School
One of the most-discussed and controversial provisions of the patent reform bill currently pending before Congress is the change to the United States' venerable first-to-invent patent priority rule. Surprisingly, even as as we stand on the cusp of the broadest set of changes to the US Patent Law in two generations, virtually no empirical analysis has been conducted on the potential impact of this change, particularly on individual inventors.
In a new paper by my Penn colleague David Abrams and myself -- Priority Rules: An Empirical Exploration of First-to-Invent versus First-to-File -- we seek to shed some light on this question by exploiting the same rule change in Canada as a natural experiment. After collecting data on over a million patent grants in Canada and the US, we use a difference-in-difference empirical framework to estimate the impact of the priority rule change on small inventors. Our main finding is a substantial drop in the fraction of patents granted to small inventors in Canada coincident with the implementation of first-to-file. The overall policy implications depend on the relative value of inventions by small inventors, but the results do reveal that, contrary to the conventional wisdom, a change to first-to-file is not free — it is likely to result in reduced patenting behavior by individual inventors.
The complete paper is available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919730