Just to clarify, since some people (not necessarily you) confuse this: first-to-file does not mean prior art doesn't count. If you publish something, it can stil be used to invalidate a patent or application.
First-to-file just means that if two people apply for a patent, there's no possibility for the second to challenge the first with an interference proceeding[1] to attempt to prove using non-published evidence that you actually invented first.
First to file actually reduces amount and cost of litigation. It removes the need to prove that you invented something 'first', which invariably involves a lot of wrangling over when an invention was 'invented' and at what point something could even be considered 'invented'. Those questions were deemed to be distracting and not particularly helpful to the patent process. First-to-file may actually be more helpful in prior art searches because it reduces incentives to 'sit' on an invention and wait out the market, and increases certainty.
The number of applications consisting of just ideas, that haven't been implemented, tested, or tried, is going to sky rocket. And who can afford to file so many patents? The "big" established guys. Things just got worse.
As mentioned elsewhere, this is narrower than it seems. It's a rule of decision for what happens if two parties file at the same time, claiming to have invented first. Before, they fight in court to see who invented first. Now, they just look at who filed first. It does not to anything about prior art. Inventing and disclosing first still bars future patents.
To my mind, "first to file" removes some of the moral basis of patents. That is, even if someone invented something first, whoever gets to the PTO first gets rewarded with ownership of the idea. We've taken away the reward that should be given to the First Inventor based on that sacred, difficult act of Creation.
There is no "moral basis" for patents: they're entirely a creation of positive law, which generates an artificial monopoly in an inherently non-rival good, for the explicit purpose of "promot[ing] the Progress of Science and useful Arts". No "sacred, difficult act of Creation" is recognized, nor has ever been recognized, as the source of patent law.
I happen to agree, but in Europe, that's not 100% true: artists have some "moral rights" as to how and when their work is exhibited.
Even in the USA, even though the legal underpinnings don't recognize a "moral basis", legislation for the last 30-odd years seems to lean towards an "ideas as property" basis. I realize I'm conflating patent with copyright here, but so does the idea of "Intellectual Property". Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation?
> Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation?
You seem determined to find a moral root for what seem entirely to be pragmatic objects of law, but I don't think one exists to be found. If I were to eschew cynicism in answering your question, I'd propose that the legislators behind copyright extensions believe them to be the most effective means of pursuing the purpose of both patent and copyright law defined in the constitution, which I quoted in my previous comment. If we were to admit cynicism into the conversation, I'm sure you could anticipate what my answer might be.
As it happens, I do not believe in a moral basis for copyright: independent invention ruins all "property" aspects of most creations, as does the way almost every "invention" comes about, which is by incremental advances on some one else's ideas or creations. Another way that ownership fails is that the "owner" can't really tell if his or her idea has been "stolen", and has to have the state enforce property-style rights.
What I'm pointing out is that at least in the USA, legislation since 1976 has moved away from the constitutional basis for copyright or patent, and towards an "ownership" basis. "Copying is theft" type slogans and commercials prove that wealthy entities in the USA are pushing ownership as a moral basis for "intellectual property". The fact that a "World Intellectual Property Organization" exists proves that for a lot of people, "ownership" is a good moral basis for "intellectual property".
I've even heard my 6-year-old daughter complain that one of her classmates 'stole' my daughter's idea for the format of a book report. Ownership, like the idea of a "just price" is just one of those illogical things built in to human nature.
Well, the slogans used by proponents of more restrictive copyright policies aren't themselves the basis of the law, and even if many people seem to be amenable to the notion of ideas as property, actual copyright and patent law still don't work that way.
I don't agree that ownership of ideas is something built into human nature; physical property as been with us from time immemorial, but the modern notion of copyright is only a scant few centuries old, having been established by positive law and not recognized under common law. The notion of "intellectual property" is even newer.
Perhaps your daughter is being influenced by the current milieu, and not expressing an intrinsic equivocation between copying and theft that originated within her own mind.
Whoever is an inventor and gets to the PTO first gets rewarded. The patent system is an exchange. Inventor teaches the public how to make and use his invention, and the government gives the inventor a limited right to exclude others from practicing the invention. The switch to "first to file" encourages early disclosure, rather than inventing something in secret and waiting to file, or waiting until the inventor's one year bar period was about to run, then filing. Under the new system, if it's valuable and likely that someone else is working on the same system, early filing will be encouraged.
Lawyers benefit. It'll be cheaper to extort. You don't have to be afraid that someone else comes and proves that he invented this first. Owning a patent becomes almost risk free goldmine.
Also more this will lead to more patents because you have to patent to avoid someone else patenting your stuff bit later and extorting money from you.
Also more patents means more cannon fodder for lawyers for use in future extortions.
