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The Folly of Early Filing in Patent Law

73 Pages Posted: 4 Mar 2009 Last revised: 5 Dec 2014

Christopher Anthony Cotropia

University of Richmond School of Law

Date Written: February 24, 2009

Abstract

This Article questions the conventional wisdom that the patent system should continue to encourage "early filing" of patent applications-filing at the beginning stages of technological development. The current thinking regarding early filing fails to account for the lack of technical and market information available about the invention at the early stages of development. A "file early, file often" mentality is instilled in inventors, exacerbating such systemic patent problems as too many patent applications, too many patents, underdevelopment of patented technology, increased assertion of patent rights, and fuzzy patent boundaries to name a few. The Article suggests that in response patent law should require the invention be actually reduced to practice before examination-not a full-blow commercialization, but a real-world embodiment that demonstrates the invention works for its intended purpose and the inventor has proceed further down the development time line.

Keywords: patent, early filing, prospect theory

Suggested Citation

Cotropia, Christopher Anthony, The Folly of Early Filing in Patent Law (February 24, 2009). Hastings Law Journal, Vol. 61, No. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1353211

Christopher Anthony Cotropia (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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