> For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work.
First to file doesn't change this. Prior art is still prior art.
This is slightly simplified, but here's the gist. The only change is when Inventor A comes up with an idea first, Inventor B comes up with the same idea (independently!) later, and they both file for patents, but Inventor B has the earlier filing date. Under the old law, Inventor A wins; under the new law, Inventor B wins.
If you're not in that situation, first to file doesn't change things.
That's ridiculous! Inventor A should obviously always win, since he actually implemented his idea before B did. B could have seen A's idea and filed a patent on it.
I'm not sure that's obvious. (And by the way, we're talking about conception of the idea, not actual implementation. You can patent something that you haven't yet prototyped.) Anyway, the entire rest of the world uses a first to file system, so bear that in mind when you say that first to invent is obviously correct.
Just to make sure no one gets the wrong idea, it should be noted that the law requires:
The specification shall contain a written description of the
invention, and of the manner and process of making and using it,
in such full, clear, concise, and exact terms as to enable
any person skilled in the art to which it pertains, or with
which it is most nearly connected, to make and use the same,
and shall set forth the best mode contemplated by the inventor
of carrying out his invention.
(35 USC 112). So, even though filing counts as constructive reduction to practice, that doesn't mean you can just come up with a vague idea, write it up with no clue how to actually make the device, and get a patent. (Well, you aren't supposed to be able to--the examiners sometimes slip up!).
You don't actually have to have built a working prototype, but you have to be telling people in the patent how they can actually build the thing.
The examiners often slip up. That is really the nub of the problem. The examiners are incentivized to close cases, not to make the right decisions. So if you badger an examiner enough you can get them to sign off on just about anything, e.g. U.S. patents 6368227 and 7126691.
He said A came up with the idea first, not that he implemented it first. You could have this timeline:
A comes up with the idea, starts working on implementing
B later, independently comes up with the idea, and start
working on implementing
B completes implementations, files for patent
A later completely implementation, files for patent
Under first to invent, A wins even though B implemented first. Under first to file, B wins.
> B could have seen A's idea and filed a patent on it
A could challenge B's patent on the grounds that B was not an inventor.
Thanks for your detailed response! If that's truly the case, then I could support this move to first-to-file.
One worry I have is that the order might often be more like:
A comes up with the idea, starts working on implementing
B later, independently comes up with the idea, and starts
working on implementing
B files patent application describing a grossly simplistic,
untested implementation of the idea
A later completes implementation, irons out the bugs,
files for a patent, starts a business, adds great value to
the economy
B never really does much with his patent, ends up selling
it off to C who sues A for mucho $$$ in patent licensing,
or sells it to A's competitor D for mucho $$$, so they can
copy A's product with impunity.
If that scenario actually happened, then either A's patent application would contain claims that are not in B's application (and in all likelihood, A's dependent claims would prevent B from completing their product), or A was just plain stupid about waiting too long to file or publish. (The other option is that B gets granted an overly-broad patent, but that's a completely different issue.)
Is this situation really better under the current law though? If you change the situation so that B had the idea first, but the rest of the facts are the same, then the current law produces the same problems.
The reason I suspect my situation is more common than the one you describe, if the first two lines are chronologically reversed, is that the time it takes A to go from idea to practical product and filed patent is assumed to be greater than the time it takes B to go from idea to filed patent, since B didn't wait until he had a marketable product before filing. This new system gives B a corresponding advantage over A.
Perhaps another assumption is that by the time the seeds for an idea are drifting in the ether, A would be more attuned to receive them, and would have started before B.
Though of course the situation you describe should be addressed, this change in policy may be an additional check against abuse that we are losing.
First to file doesn't change this. Prior art is still prior art.
This is slightly simplified, but here's the gist. The only change is when Inventor A comes up with an idea first, Inventor B comes up with the same idea (independently!) later, and they both file for patents, but Inventor B has the earlier filing date. Under the old law, Inventor A wins; under the new law, Inventor B wins.
If you're not in that situation, first to file doesn't change things.