Thursday, June 23, 2011

US patent system moves to first-to-file

Today, H.R. 1249, the America Invents Act, passed the US House of Representatives. The US Senate had passed a similar bill (S. 23) in March.

The pair of bills have some differences between them that needs to be resolved, but together they present a broad change to the way the US patent system works.

Currently, the US remains one of the few countries in the world where patents are awarded based on whoever first invents a claimed invention. This is called "first-to-invent" and has created an environment where there is a lack of incentive for inventors to file patents. Encouraging inventors to file patents and disclose their invention to the public in return for a time-limited monopoly is a policy objective of patent law, since the advancement of science relies on building upon what is already known. As Isaac Newton once said, "If I have seen further it is only by standing on the shoulders of giants".

With the new reforms, the US moves to a "first-to-file" system in which a patent is awarded to the inventor who files for a patent first.  This provides an incentive for inventors to file patents as soon as they make an invention in order to prevent any subsequent person who independently makes the same invention from acquiring patent rights.

Canada already uses the "first-to-file" system, and has been using such a system since 1989.

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