From Nigel Shindler and Paul Kemp
Tam Dalyell writes that the “first to invent” system of the US, as opposed to
the “first to file” system almost universally accepted elsewhere, puts Europeans
at a disadvantage when applying for patents
(Thistle Diary, 15 August, p 50).
However, a British applicant can now claim the right to a US patent based on
the date of invention. An American applicant can only claim rights on a British
patent to the date of his first-filed “Paris Convention” patent. So an American
applicant has no legal advantage over a British applicant.
In the US, disputes over first to invent are called “interference”. They are
usually very costly, complex, uncertain and protracted. Often the only people to
benefit from “interference” are the patent lawyers. Disputes over the first to
invent are an inevitable consequence of this form of right to patent.
The benefits of the first-to-file system include cheapness, simplicity and,
most important, certainty on which to base commercial decisions. For any British
applicant, the best approach is to file without delay—the British filing
fee is probably the lowest in the world.
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