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First to File--Patent Thoughts

posted by Adam Levitin

Congress just passed a bill overhauling the US patent system.  The most significant change appears to be shift from a first-to-invent to a first-to-file system.  Now, I am not a patent scholar and am wading into unfamiliar waters by opinining in any way on this shift, but it's rather fascinating to consider from a comparative perspective with security interests in personalty and realty, where first-to-file is generally the rule (with important exceptions like relation back for purchase money security interests and priority by possession or control).  

So, as I understand it, a key problem with first-to-invent was that it was rather time-consuming to determine who actually invented something first. Administratively, that seems like a cumbersome system, even if it does help protect original thinking. 

At first glance, first-to-file seems like a much easier system administratively, which will speed up the patent process and create more certainty in property rights--and certainty is the major goal of any property title system. It should eliminate litigation over priority of invention.  (Put differently, we're going to a pure race system, not even race-notice.) But I suspect that first-to-file will just put more weight on the question of whether A's filing covers the same property as B's filing. If A and B have filed for patents on separate ideas, then there's no competition in rights and no problem. The danger, it would seem, is that first-to-file might encourage prophylactic filings. I'm not sure how easy that is to do, but encouraging a race could undercut the efficiency gains by not having to adjudicate who was first to invent.  


First to invent is a very, very bad system, one would be just as well off granting the patent to the applicant with the largest bank account. Litigation on significant patents can go on for years.

First to file has it's own problems. There are enough paper patents out there with out encouraging more. A paper patent is one that has not been reduced to practice ie it is all fiction. There has been no machine built, no process demonstrated, no application demonstrated.

In 20 yrs of owning and operating a science intensive small business, I never filed for a patent on any of my innovations. There was no way I could afford to defend agenst infringment.

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