Who has the right to file a patent application? Is it, the first person to apply for a patent for that particular idea (first to file)? Or is it the first person who actually invented the idea (first to invent)?

Most of the world follows “first to file”. It is defined as: “the right to the granting of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention.”

But the United States, in this as in other areas, is out of step with the world. There, it is “first to invent”, defined as:  “Invention in the U.S. is generally defined to comprise two steps: (1) conception of the invention and (2) reduction to practice of the invention. When an inventor conceives of an invention and diligently reduces the invention to practice (by filing a patent application, by practicing the invention, etc), the inventor’s date of invention will be the date of conception.”

To make matters worse, America has indicated its intention to shift its patent legislation from “first to invent” to “first to file”, to get in step with the rest of the world.

But it has not yet done so.

The result: as a patent attorney acquaintance notes, “this causes much uncertainty, and indeed lengthy ‘interference’ cases.”

Get with it, America. Can we please have a consistent patent policy everywhere?