The Folly of Early Filing in Patent Law

Authors

Christopher A. Cotropia

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 that an invention be actually reduced to practice before examination-not a full-blown commercialization, but a real-world embodiment that demonstrates that the invention works for its intended purpose and the inventor has proceeded further down the development timeline.

Recommended Citation

Christopher A. Cotropia, The Folly of Early Filing in Patent Law, 61 Hastings L.J. 65 (2009).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol61/iss1/2