What is the difference between “first to file” and “first to invent” systems?

Exploring a Patent, the MPEP, and the Patent Bar, What Is The Difference?

The patent system is an important aspect of intellectual property protection, allowing inventors to secure exclusive rights to their creations. It plays a crucial role in incentivizing innovation and promoting technological progress. When it comes to filing a patent, two main systems exist: the “first to file” system and the “first to invent” system. Understanding the differences between these systems is essential for inventors and businesses alike. This article explores the intricacies of both systems, examines their pros and cons, and highlights the countries that employ each method.

Understanding Patent Systems

The Basics of Patent Systems

A patent is a legal document that grants an inventor the exclusive right to make, use, and sell their invention for a certain period. It is a form of intellectual property protection that prevents others from utilizing the invention without permission. Patent systems vary across different countries, but they generally aim to encourage innovation by providing inventors with a time-limited monopoly over their invention.

When an inventor obtains a patent, they gain the power to control the commercial exploitation of their invention. This means that they can decide who can manufacture, distribute, or use their invention. This exclusive right allows inventors to reap the benefits of their creativity and hard work, ensuring that they have the opportunity to profit from their inventions.

Furthermore, patents not only protect the rights of inventors but also promote the dissemination of knowledge. In order to obtain a patent, inventors must disclose their invention to the public in a detailed and comprehensive manner. This disclosure requirement ensures that valuable information about new technologies and advancements is made available to society, fostering further innovation and progress.

While the fundamental principles of patent systems remain consistent, the “first to file” and “first to invent” systems diverge in determining the priority of inventors.

Importance of Patent Systems

Patent systems have a significant impact on inventors, businesses, and the economy as a whole. They incentivize inventors to disclose their inventions to the public in exchange for exclusive rights. By promoting the disclosure of knowledge, the patent system contributes to the advancement of technology and encourages further research and development.

Moreover, patents play a crucial role in fostering competition and driving economic growth. When inventors are granted exclusive rights, they have an incentive to invest in the commercialization of their inventions. This investment can lead to the creation of new businesses, job opportunities, and the development of innovative products and services.

Additionally, patents can be valuable assets for inventors and businesses. They provide legal protection against unauthorized use or imitation, giving inventors a competitive edge in the market. With a patent in hand, inventors can confidently bring their inventions to market, knowing that their competitors cannot simply copy their ideas without consequences. This protection encourages inventors to take risks and invest in the development of groundbreaking technologies.

Furthermore, patents can attract investment from venture capitalists and other financial institutions. Investors are more likely to support inventors who have secured patent protection as it provides a level of certainty and exclusivity. This influx of capital can fuel further innovation and enable inventors to bring their ideas to fruition.

In conclusion, patent systems are crucial in promoting innovation, protecting inventors’ rights, and driving economic growth. By granting inventors exclusive rights over their inventions, patents incentivize the disclosure of knowledge and encourage further research and development. They also provide inventors with legal protection, attract investment, and foster competition. As we continue to advance technologically, patent systems will remain a vital component in nurturing creativity and progress.

The “First to File” System

Definition and Overview of “First to File”

The “first to file” system, as the name suggests, grants a patent to the inventor who files their application first. Under this system, the actual date of invention is irrelevant. It focuses primarily on the timing of the filing.

One of the primary advantages of the “first to file” system is its simplicity and certainty. The eligibility for a patent is determined solely by the order in which applications are filed, removing any need for complex evidentiary proceedings regarding invention dates.

However, it is important to understand the nuances and implications of this system in order to fully grasp its impact on the patent landscape.

Pros and Cons of “First to File”

Like any patent system, the “first to file” system has both advantages and disadvantages. Let’s explore them in more detail:


  1. Clarity: The “first to file” system offers clear guidelines for determining patent ownership, reducing the potential for disputes. With a straightforward criterion based on filing date, inventors have a clear understanding of the requirements to secure their patent rights.
  2. Efficiency: Since the priority is solely based on filing date, the system encourages inventors to promptly disclose their inventions, preventing unnecessary delays. By incentivizing early filing, the “first to file” system facilitates a more efficient patent application process.
  3. Global Harmonization: The “first to file” system promotes consistency across international patent laws, facilitating cross-border protection. With many countries adopting this system, inventors can navigate the global patent landscape more easily, streamlining their efforts for international patent protection.


  • Subjectivity: The “first to file” system may discourage inventors from collaborating or refining their invention before filing, as it prioritizes early filing over substantive improvements. In some cases, inventors may feel pressured to rush their applications, potentially leading to incomplete or less-developed inventions being filed.
  • Small Inventors: Some argue that the system disadvantages small inventors who may lack the resources to file a patent application immediately. Due to financial constraints or limited access to legal assistance, small inventors may face challenges in securing their patent rights, potentially leading to a disadvantage in the competitive market.

Countries Using the “First to File” System

The “first to file” system is widely adopted globally, including in major economies such as the United States, Canada, Australia, and the European Union countries. These jurisdictions recognize the simplicity and harmonization benefits offered by this system.

By implementing the “first to file” system, these countries aim to streamline their patent processes, encourage innovation, and align their patent laws with international standards. This harmonization facilitates collaboration and knowledge sharing among inventors worldwide, fostering a more interconnected and efficient global patent system.

It is important for inventors, whether small or large, to understand the patent systems in place in different countries to effectively navigate the complexities of global patent protection.

The “First to Invent” System

Definition and Overview of “First to Invent”

The “first to invent” system, also known as the “first to conceive” system, determines patent rights based on the actual date of invention. Under this system, inventors must demonstrate that they were the first to conceive the invention, even if another inventor filed a patent application earlier.

Unlike the “first to file” system, the “first to invent” system places emphasis on the inventive process rather than the timing of filing.

In the “first to invent” system, inventors have the opportunity to prove that they were the original creators of an invention, regardless of whether they were the first to file a patent application. This system recognizes the importance of the inventive process and the efforts put into research and development.

When inventors claim to be the “first to invent,” they must provide evidence to support their claim. This evidence can include laboratory notebooks, sketches, prototypes, and any other documentation that proves the concept and the date of conception. The burden of proof lies with the inventor, as they must demonstrate their priority in the invention.

Pros and Cons of “First to Invent”

The “first to invent” system has its own set of advantages and disadvantages.


  • Protecting Genuine Inventors: The “first to invent” system prioritizes the actual inventors, ensuring that they have an opportunity to secure patent rights even if they were not the first to file. This encourages innovation and protects inventors from losing their rights to those who may have filed earlier but did not actually conceive the invention.
  • Encouraging R&D: This system rewards inventors who invest time in research and development to perfect their inventions, as the focus extends beyond early filing. Inventors are motivated to invest in extensive research to refine their inventions before filing for patents, promoting higher quality innovations.


  1. Evidentiary Challenges: Determining the actual date of invention can be a complex process, potentially leading to disputes and litigation. Inventors must provide substantial evidence to establish their priority, which can be time-consuming and costly.
  2. Delays: The “first to invent” system may result in delays in patent protection, as inventors may need to gather evidence to establish their prior conception. This can slow down the patent application process and create uncertainty for inventors.
  3. Inconsistent International Standards: Unlike the “first to file” system, the “first to invent” system is not uniformly accepted globally, leading to differences in patent criteria across jurisdictions. This lack of harmonization can create challenges for inventors seeking international patent protection.

Countries Using the “First to Invent” System

The “first to invent” system was predominant in the United States until the country transitioned to the “first to file” system in March 2013. Currently, only a few countries, such as Argentina and the Philippines, continue to utilize the “first to invent” system.

Argentina, known for its rich history of innovation, has maintained the “first to invent” system to protect and reward its inventors. The country recognizes the importance of supporting inventors throughout the entire inventive process, from conception to filing.

The Philippines, another country that adheres to the “first to invent” system, places great value on the contributions of inventors. The system ensures that Filipino inventors have the opportunity to secure patent rights, even if they were not the first to file, fostering a culture of innovation and creativity.

While the “first to invent” system has seen a decline in popularity globally, these countries continue to embrace it, highlighting their commitment to protecting inventors and encouraging groundbreaking discoveries.

Key Differences Between “First to File” and “First to Invent”

Comparison of Procedures

The primary distinction between the two systems lies in the determination of patent ownership. The “first to file” system bases priority solely on the order of filing, while the “first to invent” system considers the actual date of invention.

Under the “first to file” system, inventors are encouraged to file their patent applications as soon as possible to secure priority. Conversely, the “first to invent” system allows inventors to rely on their conception date to establish priority, even if another inventor files first.

Impact on Inventors

The choice between the two systems significantly impacts inventors and their patent strategies. In the “first to file” system, inventors must prioritize early filing and disclosure to secure priority. Conversely, the “first to invent” system allows inventors to refine their inventions before filing, emphasizing the creative process.

Legal Implications

The differences between the two systems also have legal implications. The “first to file” system simplifies administrative procedures, as priority is determined objectively by filing date. On the other hand, the “first to invent” system creates opportunities for evidentiary challenges and potential disputes, as inventors may seek to prove their prior conception.

In conclusion, the choice between the “first to file” and “first to invent” systems has far-reaching consequences for inventors seeking to secure patent protection. While the “first to file” system offers simplicity and efficiency, the “first to invent” system recognizes the importance of the inventive process. Understanding these differences allows inventors and businesses to navigate the patent landscape effectively and make informed decisions about their intellectual property strategies.