Sunday, 6 March 2011

First to file or first to invent?

Nearly all the world awards patents to the first person to file a satisfactory application for one. There are exceptions, as in the Asahi case which reached the House of Lords a few years ago - OK, [1991] RPC 485 - in the days when I thought I knew everything and did a programme about it (and the Ninja Turtles case) for TEN which at the time was producing CPD videotapes. They got in high quality presenters (I don't necessarily count the lawyers, although Clive Thorne was also involved): I was interviewed by Jill Dando.

The main exception to this principle is the United States, where patents have always been awarded to the first to invent. This results in much litigation, which goes under the colourful name of "interference proceedings". Why don't we have such nice terms in English law? Well, I guess we do - just think earth closet order ...

The Senate has recently rejected a challenge to a bill that would bring the US into step with the rest of the world (there's a report here and I'm sure there will be plenty of other sources if I had the time to point you to them - like Dennis Crouch's excellent Patently-O blog, starting with this posting and including several more recent ones). I had glibly thought that the Americans were simply incapable of understanding that if they do something one way and everyone else does it another way then perhaps they are wrong. Having a copyright registry falls under the same rubric. I have previously put it down to arrogance, but I'm beginning to appreciate the potential utility of a copyright register: as for the "first to invent" rule, something I read the other day (and can't find now) drew my attention to the fact that the Constitution allowed Congress to pass legislation to give exclusive rights to inventors. So there's more to the first-to-invent/first-to-file controversy than meets the eye - and there's a lot to be said for a system that regards inventors as more important than their employers.

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