The principle of first invention protects the person who completes the invention and creation first. From the perspective of encouraging invention and creation, this principle is superior to the principle of first application. However, this principle has the following shortcomings: first, it may prompt the inventor to keep the secret of his invention for a long time, which is not conducive to the early disclosure and dissemination of the invention. Because of the principle of invention first, it doesn't matter if you apply for a patent sooner or later. The inventor can delay applying for a patent to prevent others from making improvements on the basis of their own inventions. In this way, the research and development carried out by other scientific and technological personnel may be repeated, and they will not be able to make a higher level of invention and creation by using the completed inventions as soon as possible. Secondly, when two or more people apply for a patent for the same invention and creation, it is difficult to judge who is the first person to complete the invention and creation. The United States has designed quite complicated procedures for this purpose, and it often takes a long time to enter such procedures. Third, in order to prove that he is the first person to complete the invention-creation, the inventor needs to keep a lot of evidence, because after the patent right is granted, a third person may present evidence to prove that he is the first person to complete the invention-creation and request that the patent right be granted to him. If sufficient evidence is not preserved, the patent right may be lost. This will increase the burden on researchers and make the obtained patent rights unstable.
The principle of filing first protects the person who filed the patent application first, which is conducive to the early disclosure of inventions and creations and can avoid repeated research. In addition, because the principle of first application does not need to prove the completion time of the invention-creation, it only needs to prove the time of filing the application, so its processing procedure is relatively simple, and the inventor does not need to keep evidence about the completion time of the invention-creation. However, this principle also has some shortcomings: first, it is unfair to the applicant who completes the invention before applying; Second, as soon as researchers have research and design achievements, they scramble to apply for patents, which will easily lead to a large number of immature and low-value patent applications, adding unnecessary burden to patent examination. Therefore, to implement this principle well, we need the cooperation of industry and science and technology. The patent law of our country adopts the system of early disclosure and request examination for invention patent application, which can reduce these disadvantages of the principle of first application to some extent. In addition, Article 68 of the original Patent Law stipulates the right of first use, that is, those who have manufactured the same product, used the same method or made necessary preparations for manufacture and use before the patent application date, and continue to manufacture and use it within the original scope, shall not be regarded as infringement of the patent right. This provision enables the first inventor to carry out his invention and creation within a certain scope without being restricted by the exclusive right of patent obtained by others, thus alleviating the disadvantages of adopting the system of applying first to some extent.
Weighing the advantages and disadvantages of the two methods, the principle of first application is more prominent in general, which is in line with the international coordination direction of the patent system. Therefore, China decided to adopt the principle of prior application when formulating the patent law in 1984.