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First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. The first to file system is used in the majority of countries, with the notable exception of the United States, which operates a first to invent system. A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and...
In general terms, an invention is an object, process or technique which displays an element of novelty. ...
First to file In a first to file system, the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention.
First to invent In a first to invent system, the right to the grant of a patent for a given invention lies with the first person to make that invention (with certain exceptions defined by the applicable law). The USA is the only significant country utilizing a first to invent system.
The detailed implementation of such a system is complicated, since the date of invention must be proven to substantiate a right to a patent. Under US law, the first to file prima facie has the right to the grant of a patent. Should a second patent application be filed for the same invention, the applicant for that patent can institute interference proceedings to determine who was the first inventor and thereby who is entitled to the grant of a patent. This can be an expensive and time-consuming process.
Example In an imaginary world, two inventors are secretly working on the greatest sure-kill mousetrap. Tom, the diligent first inventor, invented it. But he did not file the patent application. He wanted to improve it so it could be mass produced by ACME. To meet Wikipedias quality standards, this article or section may require cleanup. ...
Tom & Jerry title card from the 1940s. ...
The Acme Corporation is a fictional corporation that exists in the Looney Tunes universe. ...
Jerry, working independently from Tom, developed the same invention shortly after Tom's success. Jerry had no use for the invention, but he wanted to bar anyone else from obtaining a patent on it. He hired his fast running cousin to deliver the patent application too and became the first to file an application. Speedy Gonzales Speedy Gonzales (or González), the fastest mouse in all Mexico, is an animated cartoon mouse from the Warner Brothers Looney Tunes series of cartoons. ...
Both of them kept the invention as a trade secret up to this point. A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ...
If Tom notices Jerry's move in time, he may prevail in an interference proceeding filed in the USPTO. If Tom disclosed the invention to the public before Jerry's filing, he can claim prior art and use it to invalidate Jerry's patent (Tom would have, at this point, a year to file a patent application. If he failed to file within this one-year grace period, the invention would enter public domain). If he fails to notice Jerry's move before the above-mentioned deadline, he can do nearly nothing to Tom. If he uses the invention secretly himself, he is not allowed to raise so-called "prior use right" as a legal defense in a patent infringement lawsuit because the subject matter is not a business method patent. He can try to negotiate a license from Jerry or catch the mouse in another way not covered by Jerry's patent. An interference proceeding, also known as priority contest, is an inter partes proceeding to determine the priority issues of multiple patent applications. ...
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application. ...
The public domain comprises the body of all creative works and other knowledge—writing, artwork, music, science, inventions, and others—in which no person or organization has any proprietary interest. ...
In most litigation under the common law adversarial system the defendant, perhaps with the assistance of counsel, may allege or present defenses (or defences) in order to avoid liability, civil or criminal. ...
In law, a patent infringement occurs when the subject-matter claimed in a patent has been utilized by someone other than the rightholder, without the owners approval or in disagreement with the terms of use given by the owner. ...
Business-method patents are among the most controversial forms of legal protection for some Internet companies. ...
It has been suggested that Licensing (strategic alliance) be merged into this article or section. ...
It is usually hopeless for a copycat to forge evidence of first invention to hijack an issued patent or publicized patent application. The term copycat (also written as copy-cat or copy cat) refers to the tendency of humans to duplicate the behavior of others, as expressed in the saying, monkey see, monkey do. ...
Forgery is the process of making or adapting objects or documents (see false document), with the intention to deceive. ...
Comparison The debate as to which system is better is long-running and unlikely to reach a single conclusion. There are arguments for and against both systems.
The first to file system leads to procedural certainty as the filing date of an application can very rarely be challenged. In contrast, the first to invent system leads to uncertainty as the right to grant of a patent can be challenged by a second party and can only be finally determined by extensive consideration of the making of the invention.
It is said, however, that the first to file system favours large companies who can afford to rapidly file patent applications, thereby gaining an advantage over smaller companies who are slower to file due to cost restraints. The first to invent system is therefore said to be beneficial in encouraging the growth of smaller companies. A potential problem with this argument is that a smaller company, filing second, would have to rely on interference proceedings to claim their patent, which may be beyond their economic reach and they are therefore no better off.
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