Key Takeaways

  • The U.S. switched from a “first-to-invent” to a “first-inventor-to-file” (FITF) patent system under the America Invents Act in 2013.
  • In a patent first system, the first inventor to file a complete application generally secures the rights — regardless of who invented first.
  • Early filing is now critical to protect inventions, reduce risks of prior art disclosures, and secure international rights.
  • Filing strategies — including provisional applications, frequent innovation reviews, and clear internal policies — help companies succeed under FITF.
  • Ownership and inventorship remain legally distinct: inventors must be correctly named, even if ownership is assigned to a company.
  • Universities, startups, and individual inventors must balance early disclosure, publication risks, and rapid filing practices to stay competitive.

The US Patent First to File program is the application system that determines who is recognized as an invention's official inventor and the date of invention. The first patent application filed is the formal record for that invention. The United States Patent and Trademark Office has transitioned from a First to Invent (FTI) system to a First Inventor to File (FTF) system. President Obama signed the FTF into effect via the America Invents Act (AIA) in September 2011, effective March 2013.

First-to-File vs. First-to-Invent

Historically, the United States has had a First to Invent (FTI) system, honoring the date of conception as the priority date and entitling that inventor to the patent. The First to File system awards the patent to the inventor who filed the patent application first, meeting all stipulations.

Important patenting dates include:

  • Date of Conception: Date the inventor first conceived the complete invention.
  • Date of Actual Reduction to Practice: Date a working model was built.
  • Date of Constructive Reduction to Practice: Date the patent application was filed.

Under the FTF system, the filing date is the official record of patent application and ownership. Under the FTI system, the date of conception is considered the priority date, assuming all supporting documents correspond.

Global Impact of the Patent First System

The transition to a patent first system brought the United States into alignment with the rest of the world, where first-to-file has long been the norm. This global harmonization simplifies international patent strategies and reduces disputes over invention dates. For companies seeking protection abroad, consistent standards across jurisdictions make global filing strategies more predictable and cost-effective.

However, the change also means inventors must be vigilant. Filing quickly is now often more important than perfecting the invention, since a competitor who independently develops and files first could obtain the patent. This shift emphasizes the importance of strong internal processes for documenting inventions and rapidly moving from concept to application.

Constitution

The U.S. Constitution protects people's ownership of exclusive intellectual property rights. A common argument against an FTF system is that the founding fathers would have been more concerned with invention dates and not application filing dates. Copyright law supports that argument. Based on the same constitutional clause, the owner is not determined by when the copyright is registered but by when the unique concept or idea is established.

Quality of Invention Disclosure

With a focus on filing the patent application promptly, certain elements of the process are rushed, causing a number of potential problems:

  • Less time spent researching prior art to determine patentability.
  • Less time spent on the application, reducing the quality and breadth of disclosure.
  • Working prototypes are no longer the "best mode" of the invention and are now rushed to speed patenting.

Balancing Speed and Substance in Patent First Filings

While speed is critical under the first-to-file model, quality cannot be sacrificed. A hastily prepared application may fail to adequately describe the invention, resulting in narrower claims or even rejection. Inventors should:

  • Conduct thorough prior art searches before filing.
  • Ensure the application includes sufficient detail to support broad, defensible claims.
  • Include alternative embodiments or variations to expand protection.

Strategic use of provisional applications allows inventors to secure a priority date quickly while providing up to 12 months to refine the invention and prepare a full non-provisional application.

Effect on Small and Independent Inventors

In an FTF system, the independent inventors are disadvantaged against large corporations with established committees and attorneys on staff. They tend to have existing procedures for patent applications, more inventors, and plenty of money for the process. Small companies, however, can move faster when they identify a patentable innovation and can make decisions to protect it without multiple levels of approval. These companies typically do better under an FTI system.

Ownership vs. Inventorship Considerations

Under U.S. patent law, inventorship and ownership are not the same. The named inventors must be the actual individuals who contributed to the conception of the invention’s claims. Ownership, on the other hand, can be assigned — often to an employer or sponsoring organization.

Mistakes in naming inventors can invalidate a patent, so it’s essential to carefully document contributions throughout development. Startups and small businesses should also use clear employment agreements to ensure that ownership rights transfer from employee-inventors to the company, preventing future disputes.

Effect on Universities

While universities focus on research, professors focus on publishing and sharing information. The introduction of FTF could greatly reduce university patents and potential revenue if scientists do not meet the 12-month deadline to file due to busy schedules publishing and presenting their findings.

Academic Strategies in a Patent First Landscape

Universities face unique challenges under a patent first regime. Because researchers are incentivized to publish quickly, public disclosure can jeopardize patent rights if not timed properly. Institutions should:

  • Educate faculty and students about the risks of premature disclosure.
  • Establish internal procedures for reviewing inventions before publication.
  • Use provisional applications strategically to preserve rights while allowing research dissemination.

Such practices help universities maintain revenue streams from licensing and technology transfer while still advancing their research missions.

Harmonization of Patent Law

The main argument to change U.S. patent law to the FTF system is to coordinate with patent laws in the rest of the world, except the Philippines. Arguments against such a transition include:

  • The U.S. FTI process was one of the first and most developed patent systems in the world.
  • The U.S. is the only country to mention intellectual property in its founding documents.
  • The U.S. was the first country to recognize that business methods and software are patentable.

How Can I Use the FTF System to My Advantage?

  • File before anyone else.
  • Identify new inventions quickly, and protect them.
  • File only fully formed, descriptive applications with sufficient documentation.
  • File as soon as you've conceived your invention completely.

Best Practices for Businesses and Startups

Businesses operating under the first-to-file framework can strengthen their competitive edge by implementing proactive patent strategies:

  • Create invention disclosure programs that capture new ideas quickly.
  • Coordinate R&D and legal teams to evaluate patentability early.
  • File international applications (via the PCT) promptly to maintain global protection.
  • Review and update internal IP policies regularly to reflect changes in technology and markets.

Firms that integrate these practices reduce the risk of losing rights to competitors and maximize the value of their intellectual property portfolios.

What if I Have an Invention But I'm Not Ready to File?

If you're in the early stages of your invention, you can file a provisional patent application. This gives you up to a year to file the full application, which would only include the information you protected previously. You can file additional provisional applications as needed, but make sure you tie them all into the final filing.

The Risk of Not Filing a Patent Application Immediately

If you wait too long, the main risk is that someone else could file on your invention. You should file first before disclosing any information, offering your product for sale, or giving any public demonstrations. While you might hear different advice from life and business coaches, your patent attorney will always tell you to file first and as quickly as possible.

Frequently Asked Questions

  1. What does "patent first" mean?
    It refers to the first-inventor-to-file system, where the first person to file a patent application — not necessarily the first to invent — is awarded the patent.
  2. How quickly should I file a patent under FITF?
    As soon as your invention is fully conceived and can be described in sufficient detail. Filing early reduces the risk of losing rights to a competitor.
  3. What happens if someone else files before me?
    If they independently invented and filed before you, they may receive the patent. You could challenge it only if they derived the invention from you.
  4. Can I file a provisional patent application first?
    Yes. A provisional application secures your filing date and gives you 12 months to file a complete non-provisional application.
  5. Does publishing my invention before filing affect my rights?
    Yes. Public disclosure can bar you from obtaining a patent in many countries and starts a one-year clock in the U.S. for filing an application.

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