First to File in the Unpredictable Arts: Change in Law Requires Balancing of Competing Interests

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Currently pending before Congress is the “America Invents Act.” Although patent reform has been proposed several times in the past decade, this year its imminent passage is widely expected. Among the bill’s dramatic changes is a switch from our patent system’s current first-to-invent regime (a feature unique to American patent law) to a first-to-file system. This hotly-contested change aligns the United States with the way the rest of the world determines priority for patent rights among competing applications filed by different inventors for the same invention.

Instead of maintaining the arcane “interference” procedure to analyze priority by determining which party invented first, the change awards priority to the entity that first gets their application filed with the patent office. In competitive technology fields this move puts additional pressure on companies to quickly make critical patent strategy decisions about how to protect newly-conceived inventions. Among the most important are decisions about how best to balance the need for winning the race to the patent office with completing the work required in a patent specification.

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