Misunderstanding a first-to-file patent system
One of the more “controversial” pieces of the current Patent Reform Act of 2007 is the first-to-file provisions. Part of the reason for this controversy is a misunderstanding of what it actually does when compared to our current system (first-to-invent).
In the current system, if two people file for a patent, something known as an “interference” is declare. From there, both sides spend a lot of money in a bunch of complex court-like proceedings trying to prove who invented the thing being patented. Whoever wins the interference proceeding gets the patent. There are large battles over interferences, and there are law firms that specialize in handling them, because they can get quite complex.
In the proposed first-to-file system, if two people file for a patent, the one who filed first gets it.
That’s it.
Moving to a first-to-file system would have absolutely no effect on what is considered prior art. If you go and publish something, it does not mean that someone can go and file a patent on it if you do not. Your publication will still be prior art against their patent.
The real reason for first-to-file is to get rid of the weird system of interference proceedings we have, not to try to make more things patentable.