On Saturday, March 16th, the United States’ patent system changed from “first-to-invent” to “first-to-file.” This is a significant change, one whose countdown flustered “garage inventors” and small enterprises who don’t have the resources to quickly bring a new product to a level it can be patented. However, as others have pointed out, the system is not the true first-to-file system that much of the world uses. Rather, it’s a first to publicize; those who disclose their inventions have a year’s time to file a patent.
Since many foreign countries operate on a true first-to-file model, U.S. inventors who publicize, but do not file immediately, run the risk of having their eventual patent unrecognized in other countries, which creates the same tension that initiated this move from first-to-invent to first-to-file: Patents originating in any country are recognized internationally. Hence, an inventor in a foreign country could file a patent for a product identical to one an American inventor created 6 months prior (but didn’t file a patent for), creating conflict centered on which inventor should be honored with the patent because America follows a different model than most of the world.
The USPTO’s reluctance to transition completely to a first-to-file does not seem to be something done for the sake of being different (standard system, anyone?). Or at least I hope not. What I hope is that the move is a attempt to nudge inventors to file as quickly as they can, but still afford them some protection that “first to invent” offered if they cannot.
If you’re craving them, here are the gritty details.
Or a smoother, more easily digested summary.
What do you think about the change? How do you think it will affect inventors?
[cc image credit to Kasaa]