Our final installment explores how the America Invents Act would inject massive uncertainty into the patent system in the name of trivial predictability.
One of the seemingly boring measures of the pending bill is sold as an effort to improve the predictability and efficiency of the U.S. patent system by trying to harmonize it with those of other countries. It would do so by shifting the U.S. system from being based on a first to invent approach to being based on a first to file approach. Whenever two or more teams of inventors claim to have invented the same thing, a patent system must develop a way for deciding who will get the patent that covers the invention. The U.S. presently makes that determination using a quasi-litigation procedure called an interference, in which the team that can be shown to be the first to invent is awarded the patent.
Proponents of the proposed bill think that the tiny number of times that these contests arise casts too dark of a cloud of uncertainty over every issued patent. They further fret about the differences between the first to invent approach presently followed in the U.S. and the first to file approaches followed elsewhere in the world.
Bill proponents offer their first to file system as a faster and easier method for determining who should win in these contests. They even invoke the disturbingly Orwellian maneuver of labeling the new approach as "first inventor to file," rather than merely "first to file."