FIFO Meets First to File

A story that will have implications for every inventor and Research and Development (R&D) organization across the US came to my attention this morning. The US Senate has voted to change the US patent system. Called the America Invents Act the Senate approved significant changes to our patent system by a vote of 95-5. Given the current climate in Washington, I am amazed that something important to our future could garner that kind of support.

The most impactful change to the patent system would be that of switching the US from a First-to-Invent to a First-to-file system. Simply put, First-to-Invent places an interesting onus on those that file for patents to prove they are the actual inventor. In that sense, a filing is perceived as being false unless proven to be true. It can, therefore, always be challenged. Interestingly, the majority of the world uses the second system, First-to-file. With First-to-file the patent action begins on a positive note. The first inventor to file for a patent is assumed to be the proper owner, which is true in the majority of cases. Of course, this does pit procrastinators against the time management crowd. It also, to Senator Dianne Feinstein’s point, pits the small inventor against the large R&D lab in a “race to the steps” of the US Patent Office.  Although, there is merit to her argument, filing for patents is something large companies with R&D perform with regularity. The conflicts between the corporate inventor and the garage work bench are really few and quite rare. When they happen they make for great David versus Goliath stories.

In addition to making the filing a positive thing and bringing the US into compliance with a majority of nations, the other benefit is to reduce the number of patents pending. The current backlog for patents is over 700,000. How do we ever get into situations like this?

I suspect the House will have its own proposal which will require reconciliation with the Senate but on the surface, this looks like a good thing.

By the way, FIFO (First-In-First-Out), it is similar to First-to-File but more related to programming and inventory management than the new proposed patent system.