First-to-File vs. First-to-Invent

Introduction

The United States patent system is based on a unique “First-to-Invent” doctrine, which means that the inventor who first conceived of the invention² is considered the first inventor and is entitled to patent protection.  Other countries have patent systems based on the “First-to-File” doctrine, in which the patent is granted to the inventor who is the first to file a patent application, regardless of the date of invention.  The Patent Reform Act of 2007, which was passed by the House of Representatives last September and is awaiting a vote in the Senate, if passed into law, will change our system inter alia to First-to-File.  This article analyzes the pros and cons of the two systems and what it means to American innovators and industry.

First-to-File vs. First-to-Invent Patent Regimes

The principal advantage of the US First-to-Invent system is that it rewards the first inventor, not the winner of the race to the Patent Office. 

When two inventors file patent applications on the same invention, there may be an interference hearing before the Board of Appeals and Interferences at the US Patent Office to determine who conceived of the invention first, and whether the inventors have been diligent in reducing their inventions to practice....