Critics of the first-to-file system also contend it will create a "race to the mailbox," and result in sloppier, last-minute patent applications.
The first-to-invent system, however, requires the United States Patent and Trademark Office (USPTO) to undertake lengthy and complicated "interference" proceedings to try to determine who invented something first when claims conflict.
The first-to-file system, supporters contend, would inject much-needed certainty into the patent application process.
2795 provided for "inventor's rights contests" that would have allowed the USPTO to determine which applicant is entitled to a patent on a particular invention.
On the other hand, protests are the only way for third parties to challenge a patent prior to approval, when recourse is only available through the court system.
2795 would have deleted the phrase "or could have raised" from the statute, so that reexamination requesters would be limited only with respect to arguments that they actually made before the USPTO.
2795 would have also established post-grant opposition proceedings, a feature that is common in foreign patent regimes.
Oppositions allow a wide range of potential invalidity arguments and are conducted through adversarial hearings that resemble courtroom litigation, but because they limit discovery and involve a lower burden of proof, oppositions are cheaper and faster than lawsuits.
This is the second subjective factor that has been identified as increasing the length and cost of patent infringement suits.
2795 would have eliminated this defense, instead codifying a duty of candor for all parties in proceedings before the USPTO, and providing authority for the PTO to investigate allegations of inequitable conduct and impose civil penalties.
Most foreign countries already allow patent applications to be submitted by an assignee as long as the oath of invention is signed.
Injunctions are currently awarded in patent infringement cases if the plaintiff satisfies a four-part test.
2795, as originally introduced, would have required a court to consider the "fairness" of an injunction in light of all the facts and the relevant interests of the parties, and allow an injunction to be stayed pending appeal upon an affirmative showing that the stay would not result in irreparable harm to the owner.