"First To File" Versus "First to Invent"

I posted some questions about the differences in United States patent law and patent law in other countries to the geowanking mailling list a couple of weeks back. A couple of the other posters where willing to clarify my understanding of the difference between a "first to invent" patent system like the one we use in the United States, and a "first to file" system that is used on most other countries.

I was concerned that a "first to file" system (in which the first person to file a patent, not the first person to invent the thing being patented, is granted the patent) would allow big corporations to steam role patents over smaller companies and open source programmers.

Here was the scenario I posted:


Let's say that a hobby programmer comes up with a great algorithm to
help create optimal temps in a bio-fuel cooker. He doesn't take the
time to file a patent on his algorithm, but releases it as part of an
open source library.

Chevron comes along and files a patent application on his algorithm.
Does Chevron get awarded the patent?

Here was a response from Puneet, which summed the differences between the two patent systems:


No, Chevron won't get the patent in all likelihood because of "prior art." For that matter, your hobby programmer friend also won't be able to patent it anymore because his algorithm is now in public use, unless he can prove that it was being "experimented with" (difficult to establish).

On the other hand, if the hobby programmer sat on his algorithm, not telling anyone about it, and Chevron later on invented the same thing and filed for the patent, in spite of the hobby programmer being the "first-to-invent," Chevron would get the patent for being the "first-to-file" (under new rules).

After this explanation I understood the advantages of "first-to-file" systems. It helps reduce the ambiguity of deciding who should be awarded a patent. I think a system that prevents companies from sticking algorithms (or other patentable "things") in thier corporate vaults for 20 years and then suing someone else who comes up with the same idea independently is a better system than one that would allow this behavior.

The Sunburned Surveyor