Debate

Topic: A first to file patent system is superior to a first to invent system. America is right to be
changing to first to file in 2013.
Goal: show a first to file patent system is not necessarily superior to a first to invent system.
Clarification and Definition:

A first to file patent system is one in which the first person to file a patent application
for an invention is the one who receives protection for that invention. A first to invent
system is one in which the actual inventor is the one who receives protection for that
invention upon the filing of a patent application.

What does it mean to or be the [first] inventor? We argue it means that one is able show
conclusive evidence that he was the first to conceptualize the invention the first to show
how the invention could be made.

What does it mean for one system to be superior to another? We argue it means that
one system is more fair than another. In this case, a first to invent system would be
more fair. [We may admit, if necessary, that this is not as feasible or inexpensive as a
first to file system, but that does not mean it is superior. For example, the enforcement
of laws on immigration or illegal downloading may be infeasible, but they are or at least
should be fair.]

History: Every country except the United States has a type of first to file system, though there
are some differences. To take just one example, Canada and the U.S. dont disqualify one who
publically discloses his invention from receiving a patent for it if he or she applies within one
year of the public disclosure, whereas Europe does.
Our first argument against the first to file system is that its unconstitutional. Article 1, Section 8,
Clause 8 says:
Inventors refers to persons who made the initial discoveries, not the persons who were the first
to be able to take advantage of a discovery. The first to file system potentially strips inventors of
their exclusive right.

We project that this discrimination will have economic implications especially noticeable against
individuals and small businesses, both of which are put at an unfair disadvantage since they do
not have the resources and connections of large corporations. Under the first to invent system all
you need to be able to do to have protection for your invention is to show that you were the first
to conceptualize it and beginning the process of reducing the mental to the physical or practical.
Under this new system, inventors will need to be able actualize their inventions as soon as
possible so as not to lose the race in the filing of a patent. The one year grace period gives them
some leeway, but ultimately, time is not on their side.

This leads us to believe that a first to file system violates scientific norms. It can penalize
originality and restrict openness, autonomy, and universality. Weve mentioned all of these
concepts in class, and theyre fundamental principles scientific structures need to maintain in
order to stimulate applied research and development. Promoting fairness and equality in science
is more important than any alleged benefits our opponents can argue. Good science is good
science, and innovators should be rewarded accordingly.

Now, I think everyone recognizes that its all well and good to make projections, so my partner is
going to demonstrate historical precedent for our expectations by taking a look at the parallel
switch made by Canada from a first to invent to a first to file system.

Our burden of proof is satisfied if we can show just one concrete example that a first to file
system is not necessarily superior to a first to invent system.
Just because the procedures by which one attains a patent may be simpler does not mean it will
be easier for someone to actually receive a patent for his invention. If Im an individual or small
business owner who has an invention, and I know that in order to receive a patent, I need to
make sure that Im the first file or to say publically disclose it, is that knowledge going to help
me get my finances in order more quickly? No.
Common sense tells you that if the rules of the system are that whoever is the first to publish or
first to file wins, people are going to be rushed and the quality of publications which disclose socalled inventions are going to drop, or individual innovators are going to minimize potential risks
and join large firms with financial security instead of trying to themselves. Its the big businesses
which are going to benefit from this, not individuals. This is nothing that cannot be seen in our
study of Canada. You saw a spike in publications immediately following the reform, and then a
sharp dropoff.