The U.S. patent system is currently based on a first-to-invent doctrine, which means that the inventor who first conceived of the invention and then reduced it to practice by filing a patent application is considered the first inventor and is entitled to patent protection. Every other country in the world, except the Phillipines, has a patent system based on the first-to-file doctrine, in which the patent is granted to the inventor who is the first to file a patent application, regardless of the date of invention.

Last week, Sen. Diane Feinstein (D-California) proposed an amendment to the patent reform bill (S. 23) to strike the first-to-file provision. Feinstein, whose amendment was soundly defeated, said that she believed that first-to-file “would be severely harmful to innovation and especially burdensome on small inventors.” She added that, “under first-to-invent, we have been the world’s leader in innovation, and the first-to-file countries have been playing catch-up.”

Sen. Orrin Hatch (R-Utah), one of the architects of patent reform, rebutted Feinstein’s claims that the current system is better for the small inventor than first-to-file. He said that under the current system, “if there’s a dispute, it costs applicants an average of $500,000 in legal fees to prove they were the first to invent,” a sum he said would fall to $100 under first-to-file.

Sen. John Kyl (R-Arizona), added that first-to-file has “been the subject of debate for about 20 years” and was thoroughly vetted in both chambers of Congress in previous attempts at reform. “This provision . . . is supported by all three patent organizations,” including the American Bar Association (Washington), “and very importantly, has the support of independent inventors.”

Some opponents of the first-to-file system also raise a constitutional argument, citing Article I, Section 8 of the Constitution which says: “The Congress shall have power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

So for a first-to-file system to be constitutional would there need to be a change in the way an inventor is constitutionally defined?

Which patent filing system do you prefer for the U.S. and why?