What Does First-To-File Mean To Me?
As we reported earlier, the Senate’s Committee on the Judiciary, has issued its draft report on the Patent Reform bill (S. 1145), to amend the patent laws currently in Title 35 of the United States Code.
These changes will have a dramatic impact (positive or negative depending on where you stand) on every patent applicant. One major item is that the Patent Reform Act of 2007 would change the U.S. patent system to a first-to-file system for the first time.
Every industrialized nation other than the United States uses a patent priority system commonly referred to as “first-to-file.” In a first-to-file system, when more than one application claiming the same invention is filed, the priority of a right to a patent is based on the earlier-filed application. The United States, by contrast, currently uses a “first-to-invent” system, in which priority is established through a proceeding to determine which applicant actually invented the claimed invention first.
Unlike the objective date of filing, the date someone invents something is often uncertain, and, when disputed, typically requires corroborating evidence as part of an adjudication.
Recognizing the problems of allowing others to derive (read: steal) another’s invention and race to the Patent Office to get it filed first, the proposed change is to a “first-inventor-to-file” system. Under the bill, an applicant must still have independently invented the subject matter claimed in the application. This is different from many other countries, which have a literal “first-to-file” system that allows anyone to file as long as they are first.
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