St. Mary's Law Journal


Ned L. Conley


The United States uses the first-to-invent patent system, which is a time-honored system not worth abandoning in pursuit of harmonization. First-to-invent and first-to-file patent systems incentivize different approaches to obtaining a patent. However, a first-to-invent approach is, in part, what has allowed the United States to lead the world in innovation and it should not abandon this approach. The United States patent system is unique when compared to most other patent systems used by democratic, capitalistic, developed nations. A first-to-invent system provides incentive to invent, particularly to inventors who are less well financed. The incentive to innovate is in the hope of profit. There is less emphasis on the finances of the inventor in a first-to-invent system. Many other countries use a first-to-file patent system. A first-to-file system prioritizes timeliness rather than the completeness of an idea and places more emphasis on the finances of the inventor. For most inventors, harmonization is not worth the cost. The alleged advantages of a first-to-file patent system in the United States are largely illusory. Changing to a first-to-file system in the United States will not have any beneficial effect on the patent system in this country. For the United States to benefit from abandoning the first-to-file system currently used, almost all other countries need to make concessions – a highly unlikely reality. Changes to our patent system should strengthen the system, not weaken it; encourage innovation, not discourage it; give inventors the exclusive right to their inventions, not non-exclusive rights. A first-to-file system accomplishes exactly that.


St. Mary's University School of Law