Consider two innovators working independently on a single groundbreaking invention, one of them completes the innovation prior to the other person, but the other person though finished his innovation a little later, but files for a patent before the former, so the question that arises is, who ought to be the patent owner? This question lies at the heart of First to File VS First to invent patent systems

Different countries have different approaches towards determining patent rights. As per First to Invent system, it grants a patent to the person who first conceived and developed the invention, even if they file it later. On the other hand, the First to File system is based on the idea that, the one who applies for patent first will be granted patent regardless of chronology of invention.

While the United States of America, initially adhered to First to invent system but later it too switched to, First to File system in the year 2013, under the America Invents Act. Meanwhile the First to File method has long been used in majority of other countries such as- India, China and Europe. But the question is which among the two approach is perceived as better, and how do these systems invent inventors and businesses?

Background and Context

What is a Patent?

A Patent is a legal right granted to an inventor, allowing them exclusive control over their invention for a fixed period, (typically 20 years). This helps the patent owner to profit from their creations.

Obtaining a Patent for an invention, would be possible only if the invention is:

• New (Novelty)- The invention must be new and original, which should not be known to people at large.

• Non-obvious- It should not be a mere modification, simplification or improvement of the existing idea or technology.

• Application- The invention should be capable of being applied for actual use and should have practical application

The key issue lies while determining the fact that who gets the patent when multiple people work on the same invention. This is where it is important to determine who should get the patent the First to File or First to Invent.

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First to Invent V. First to File: A comparison

1. First to Invent: It is the approach where, patent is granted to the person who could prove that they invented something first, even though they filed their patent application later.

This approach was seen in the United States of America prior to the year 2013.

Advantages of First to invent approach:

• Protects the interest of small inventors and researchers, who struggle to file patent and may take longer to file due to being technically challenged.

• Encourages inventors to focus on actual innovation, rather than to see who cab win the race of filing first

• Gives recognition to the true inventor or the creator of an invention

Disadvantages of First to invent approach:

• It is often difficult to prove who invented first as it requires keeping detailed lab notes and records.

• It may lead to legal disputes and costly litigation over priority claims.

• Slows down the patent process due to complex verification procedures, as figuring out who came up with the invention takes a great deal of time.

2. First to File: This system grants a patent to the first person to submit a valid application to obtain patent regardless of when they invented it.

It is perceived as the global standard as this system is used in Europe, China, Japan, India and most other countries.

Advantages of First to File system:

• It is a simpler and much faster way as there is no need to prove as to who invented first.

• It leaves little to no room for legal dispute because it works on the principle of first to file gets the patent

• It promotes efficiency among people as it encourages people to file patent at the earliest possible.

Disadvantages of First to File:

• It may give an unfair advantage to large companies and well-funded inventors who can file quickly

• This might also involve the risk of patent hijacking as someone else could file before the true inventor

• This may also lead to rush filing leading to the filing of incomplete patents to secure priority.

Case Study-

The U.S shift from First to Invent to First to File:

The America Invents Act, signed into law in 2011, took full effect in 2013 and changed the U.S. patent filing system from First to Invent to First to File.

Key reasons for the shift of system:

• Aligning the U.S law with international patent systems for consistency, with other nations.

• Reducing legal battles over who invented first.

• Encouraging faster and more efficient patent filings.

Impact on Inventors and companies:

• Small inventors face pressure to file quickly or risk losing the patent rights.

• Businesses and big corporations have started investing heavily in Intellectual Property strategies due to increase in race of patent filing.

• The number of provisional patent applications has risen dramatically, as it is a way to secure an early filing date

Which system is better?

The First to File vs First to Invent debate centers on fairness vs efficiency. The First to Invent System protected small inventors but led to complex legal disputes.

On the other hand, the First to File system is simpler, faster and internationally consistent but may favour big corporations over individual inventors. Since most countries now follow First to File system, inventors must focus on early filing strategies to stay competitive. The shift underscores the importance of strong IP planning, provisional patterns and legal awareness in the modern patent landscape. With the race to the patent office, more competitive than ever, the question isn’t just who invent first - but who files first. Are we prioritizing speed over true invention?

Author :-Saloni Jain, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.