First to invent

The first to invent policy is a controversial patent law doctrine only used in the United States. Based on this policy, under certain circumstances, inventor A who made the invention earlier than inventor B, deserves to be awarded a patent even if B filed the patent application to the United States Patent and Trademark Office (USPTO) earlier.

Background

In the U.S., most inventors do not encounter first to invent problems. This doctrine is only applicable with:

1. two pending applications, or
2. one pending application and a patent issued within a year of the pending application's filing date.

If the earlier inventor failed to notice other inventor's issued patent or patent application on time, he/she can not claim to be the first inventor. Nor can he/she claim so-called "prior use right" as a legal defense in a patent infringement lawsuit unless the subjected is a business method patent. The earlier can do nothing but to request for a license or stop using the patent.

Economical analysis

Most patents are not profitable.

In many less profitable areas, inventions are so profitable to justify lawsuits.

See also

• First to file
• Submarine patent
• Inventor's notebook
• Interference proceeding