The United States First-to-Invent System: Economic Justifications for Maintaining the Status Quo

The latest patent reform bill, the United States Patent Act of 2005, has rehashed one of the most hotly contested debates in patent law: whether the United States should switch to a first-to-file system. Most arguments for keeping the current first-to-invent system center on fairness to small businesses or individual inventors. Although this argument has held its own for many years, it is beginning to erode in the face of counterarguments that the switch to a first-to-file system would be economically beneficial by simplifying matters and encouraging faster public disclosure. Thus fairness is no longer enough to justify maintaining the current system. This Article will attempt to justify the current first-to-invent system on another ground: that it is more economically beneficial than a first-to-file system. Despite the purported benefits of a first-to-file system, this Article contends that the United States should not adopt the first-to-file provision of the Patent Act of 2005. Although a first-to-file system could offer some potential economic benefits, only the current system satisfies the economic goal of wealth maximization while simultaneously achieving the constitutional policy goal of promoting the progress of Science and the useful Arts. The patent system was designed as a delicate balance of incentives for promoting invention and public policy goals, such as wealth maximization, and only the current system strikes the correct balance between those two goals