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[Edit] Ninja'd by Jason.
Does this benefit the small companies that actually create jobs in the US, or the huge companies that are net job outsourcers?
Patents are not a trivial thing. They can cost somewhere along the lines of $10,000.00 and above and take a long, long time to shepherd through the system. Companies and inventors don't want to start this process unless they're pretty sure they'll benefit in some way. There might be some stories about some wacky guy patenting some wacky, useless invention for his own vanity, but I'd say the current system encourages prudence in deciding whether to seek a patent.
It's easy to see how a system that encourages a race to file would result in many, many minor little innovations being filed just for protection purposes. Also, large companies would have even more of an advantage than they already do now due to their huge war chests of litigation moneys.
Finally, if what mattered was who file first rather than who could prove that they came up with the idea for the invention first, wouldn't that encourage simple theft? If "first to file" is what matters, what's to stop the football captain fraternity guy from stealing the idea of the geeky inventor, running down to the patent office, and getting all the benefit?
Here's an example - the guy who invented the "Merlin" game developed it with his wife and his brother-in-law. Under a "first to file" system, what would stop the brother-in-law from just stealing everything, running down to the patent office, and enjoying all the benefit?
What I'm talking about is an encouragement for someone like the Dyson vacuum guy to think, "Oh, I just had an idea. I'd better run to the patent office and patent it now even without spending the time to learn if it might be worth anything just to protect my own interests."
Another thought - Do you think this might cause a chilling effect on publication and sharing information? Why would Reed Richards publish an article that might contain a grain of a patentable idea if Peter Parker could read it and then run to the patent office and patent it?
The idea of "first to file" kind of seems to be in direct opposition to the ideals of copyright, doesn't it?
I mean, the way I look at it, patents are fucked up right now. This could create problems, but it could also protect the interests of the prospective small business owner.
Think of it like this: if you're a dude in your garage inventing something, odds are you probably don't have lots of capital to throw around. So you get an idea, but then you actually have to gather the resources to invent the thing. That often requires capital raising, which can make your idea vulnerable - you put the idea out there to investors, and someone with sufficient funding could steal the idea, make it, and patent it before you can.
"First to file" could give an opportunity to the under-funded to obtain protection for their idea and then engage in capital raising, while having the security of a patent protection.
Of course, it totally allows for the patent equivalent of domain squatting, which might make some things harder.
Remember Robert Kearns, the guy who invented the intermittent windshield wiper? His story is almost exactly the same as your hypothetical in which a garage inventor dude goes to some big money dudes, who then steal his idea. Kearns won every case he tried against the big car manufacturers who stole his idea because he was protected under the "first to invent" system. Under a "first to file" system, Kearns would have been out of luck. I understand your point here, but the reason that garage guys need big money guys is that the whole patent process is very lengthy and very expensive. It's not something you can do through LegalZoom (well, LegalZoom will claim that they can help you, but they conveniently neglect to completely fill you in on the actual fees the USPTO charges, and their "help" in this area amounts to pretty much the same thing as Dr. Nick helping you to perform an appendectomy on yourself by talking you through it on the phone, with about the same likelihood of a successful result). If you're under-funded, you're not going to have the money to get the patent in the first place. If you do somehow spend all the time and money to get a patent first, and then try to market your invention to the big money guys who do some analysis that shows your invention is worthless, you're out thousands of dollars and years of your life for nothing.
Software patents are literally the worst thing to ever happen to the software industry.
After that, the lawsuits will also be automated. Anyone who is mining patents will also mine the news to automatically detect any company violating those patents without licensing them. They will then automatically file lawsuits against those companies, and even negotiate settlements and license fees, and accept those fees, without any human interaction on the part of the "patent holder".
That's basically the system we have now for software patents, just much much slower.
All software is math. You shouldn't be able to patent math. It's a law of the universe, not an invention. Most things either have patents or copyrights. Software has both. It should just have copyright. Nothing needs both. All software patents should be immediately and permanently invalidated.
Now, what Scott is predicting will happen with patent mining is happening with drugs. Both Norvasc and Lipitor, Pfizer's two most profitable drugs in the American market (due to obesity and heart disease) are about to reach patent expiration. Instead of inventing new and better drugs, Pfizer has combined the two into a single pill called Caduet and patented that as a "fixed dose combination drug" to keep selling it. The result is that their revenue keeps flowing, and they don't make any technological progress. Antibiotics have similar problems; why look for a new family when you can just alter one you already have?
The patent system has almost single-handedly destroyed the notion of innovation in pharmaceuticals. If you want reform, do not allow pharmaceutical companies to patent their drug enantiomers, isomers, or combinations. Allow them to patent release mechanisms and molecular formulas and retain patents for no more than three years or some otherwise short period of time. From then on, only pharmaceutical companies producing good, safe products will be able to survive.
https://wwws.whitehouse.gov/petitions/!/petition/direct-patent-office-cease-issuing-software-patents/vvNslSTq?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl