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First to Invent vs. First to File: A Simple Overview

Senate bill S.23, the Patent Reform Act of 2011, is accelerating through the Senate. The bill consists of 18 Sections, with Section 2 containing the matter most publicized, changing from a first to invent to a first to file system.

So what does this mean from an inventor’s point of view? Let’s look at a couple of very simple scenarios currently in the First to Invent (FTI) system, as shown in Table 1. We have two fictional inventors, Joe and Betty. Joe invents a gadget. He discloses it to no one and works diligently in his workshop on a prototype, and plans on filing a patent application. A couple of months later Betty invents the same gadget independent of Joe. Betty has a crude prototype and instead of further refining it she files a patent application before Joe files. After more time passes, Joe gets his prototype working to a satisfactory level, then files a patent application after Betty filed hers. Who gets the patent? Joe does, as long as he can prove he invented the gadget first shows diligence toward filing a patent application.  If Betty derived the invention from Joe, that is learned it directly or indirectly from Joe, and Betty files first, Joe is awarded the patent. The avenues that Joe has for remedy at the Patent Office are interference proceedings or “swearing behind” (via a 1.131 affidavit) Betty’s application during prosecution.

Table 1

Inventor First to Invent First to File Invention Independent/Derived Patent Awarded
Joe Joe Betty Independent Joe
Joe Joe Betty Derived Joe

In the proposed First to File (FTF) system, things change, as shown in Table 2. Interference proceedings and “swearing behind” via a 1.131 affidavit are discontinued. Even if Joe invents the gadget first, and Betty independently invents the identical gadget later but is first to file a patent application, the patent will be awarded to Betty. If Betty derived the invention from Joe and files first, Joe will receive the patent. Interference proceedings and 1.131 affidavits are replaced by proposed derivation proceedings.  If Joe shows that Betty derived her invention from his, then Joe is awarded the patent.

Table 2

Inventor First to Invent First to File Invention Independent/Derived Patent Awarded
Joe Joe Betty Independent Betty
Joe Joe Betty Derived Joe

The patent reform bill, S.23, does not explicitly define the term “derive”. Webster’s Collegiate dictionary defines “derive” as “to take, receive or obtain from a specific source”. With the inclusion of derivation, the proposed first to file system will not align the United States patent system with other first to file countries, but brings it closer.

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