by Jake Meyer

The U.S. Patent System has always been a first-to-invent system, which means that the first inventor of an invention will be awarded the patent.  Most other countries in the world are a first-to-file system, which means that the first inventor to file a patent application will be awarded the patent.  This has always been one of the large differences between the U.S. patent system and patent systems in other countries, but an amended bill before the U.S. Senate may eliminate this difference. If it is signed into law, S.515 will change the U.S. patent system from first-to-invent, to first-to-file.

In a first-to-invent patent system, the current U.S. system, disputes sometimes arise over who invented the subject of the patent first.  To resolve the dispute, the parties must first go to the U.S. Patent and Trademark Office’s Board of Patent Appeals and Interferences.  If a party objects to the Board’s decision, the party can appeal the decision to the United States Court of Appeals for the Federal Circuit.  This is a lengthy and expensive process.

The first-to-file system makes for a nice bright-line rule.  The party that is first-to-file is the true owner of the patent.  This does away with the expensive and time-consuming fights over who should be awarded the patent.  Further, switching to a first-to-invent system will help to harmonize the U.S. patent system with the patent systems of other countries, which is important in light of globalization.