The debate between First To File and First To Invent

With the America Invents Act of 2011, the United States switched its patent system from first to invent, where the inventor who can prove he had the idea first (and diligently worked to file for a patent) has the rights to the patent, to first to file, where the only thing that matters is who files for the patent first. This was to bring the US in line with international standards. This sparked a debate: which system is really better, first to file, or first to invent? The answer to that may be dependent on which criteria you’re looking at, as both rules have their benefits and drawbacks.

The old system, first to invent, had its benefits. It was seen as more fair and more true to the intent of the patent system. Proponents of first to invent argue that first to file benefits larger companies who have the lawyers and money to file many patent applications. Futhermore, the cost for filing patent applications in a timely matter may be restrictive to small inventors in general, althought the America Invents Act has a provision in it to help. Furthermore, some people argue that the switch to first to file is actually unconstitutional, as the clause that allows for congress to give patents specifies “inventors”.

The switch to first to file has some obvious pluses. For one, it brings the US in line with most of the international community, which greatly simplifies international relations with regards to patent law and enforcement. This is not to be overlooked, as it is probably the major reason for the switch in the first place. But even beyond that, there are further benefits. First-to-file saves a lot of time and manpower in the court system: cases involving first-to-file should be both more straightforward and less frequent, saving the courts and patent office time and money. Furthermore, interference cases were so expensive (over $650,000) that small businesses and inventors rarely were able to file for them, invalidating one of the puported drawbacks of first to file.

In the end, the argument is largely over and moot. While I sympathize and even agree with the proponents of first to invent on a lot of issues, switching to first to file was inevitable, as the rest of the world had already made their choice. In the increasingly global world and marketplace, standardizing laws across countries has a lot of benefits. And ultimately, I don’t think the change from first to invent to first to file will actually have that big of an impact. Inteference cases were relatively infrequent, which partially invalidates the differences (and positives) for both sides. While the philosophical debate may continue, for pratical purposes first to file has won, at least for the forseeable future.


“First-to-File vs. First-to-Invent: Who Really Benefits from Changing the U.S. Patent System?” General Patent Corporation. General Patent Corporation, Oct. 2007. Web. 22 Apr. 2014. <>.


Roberts, Jeff J. “”First to File” Patent Law Starts Today: What It Means in Plain English.” Gigaom. Gigaom, Inc., 18 Mar. 2013. Web. 22 Apr. 2014. <>.


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