first to invent vs. first to file

On Friday, the House endorsed a bill encompassing some of the most significant changes in patent law in the last 50 years.  One of these changes defines “inventorship” of a patent as the first person or group to file the patent application, as opposed to the current practice of giving inventorship to the first person or group to “invent”.  The patent systems of most other countries grant patents to the first person/group to file the application.

Thus, it is said that this change to the first to file standard will bring the US patent system into harmony with that of the international community.  Foreign inventors will have less of a disadvantage in filing American patent applications.  Further, there is no problem of evidence or proof of inventorship that is experienced in the first to invent system.  Currently, the PTO and courts must expend time and other resources tracking evidence of parties who argue about who invented something first, right down to the question of what “invent” even means (first to conceive of the idea, first to reduce to practice, etc). 

However, independent inventors may find themselves at a disadvantage in this first to file system.  They do not have the resources or legal departments that big companies have, and thus may be slower to file applications than their counterparts.  Thus, the first people that have an idea and carry it through may not be the same people who are granted the patent.  In fact, many people argue that the new system will make it easier to claim (or steal) someone else’s ideas. 

Particularly in the United States, where independence and individuality are valued highly, this might be a tough change to swallow.  On the flipside though, this change to first to file will have the effect of giving the public the benefit of the invention faster.

categories News | Amy | datetime September 9, 2007 10:43 pm

  • By Dan, October 9, 2007 @ 5:30 pm

    I agree, this signals the final nail in the coffin of the ‘old America”. Anyone involved in research is well aware of the corporate trolls who spy on NIH funded research projects. Now, you can take an idea with no worries over inventorship. I’ll be able to take a camera, walk into Harvard and start photographing all the blackboards. Send the info back to BIGGY CORP and they’ll whip up the ideas into an application ASAP. For the small guy, it is poison.

    Who else but oligarchical, paraiha corps would want such a thing? And yes, lets make it easier for those foreigners to get US applications. They’ve taken our jobs, lets give them free reign to dominate us!

  • By Darrell Fertakos, December 7, 2007 @ 3:49 pm

    WE must fight to keep the law-First to invent….

  • By Cardo Fulvio, December 7, 2007 @ 6:09 pm

    How can the small individual inventor fight against the giant,corrupted law makers?

  • By Cardo F., December 7, 2007 @ 6:14 pm

    Perhaps,by uniting the small individual inventors,a change towards freedom could be reached?

  • By Law News, August 14, 2008 @ 5:11 am

    Niche article.

  • By Sally Smith, January 8, 2009 @ 2:47 am

    I think the first to invent law will help the average person more. Darrell told me to visit the National Inventors Fraud Center-thanks to this info I became aware of all the invention scam companies that take advantage of regular people; thanks for the tip Darrell. What laws will help the average person more First to invent or first to file ? i’m not sure anyone have any suggestions ? Will congress keep the law the same or do they plan to change?

  • By Sandy Smith, February 20, 2009 @ 6:58 pm

    Thanks Darrell

  • By Jim Davis, March 18, 2009 @ 5:24 pm

    Each year, inventors get ripped off my large corp. less than 10 percent of
    Ind. inventors succeed…what can we do to help the little guy win against large corporate america?

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