"A core insight here is that Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805), and the America Invents Act of 2011 are doing the same work. Both define a formal act that counts as "possession" and award priority to whoever performs it first. In Pierson, the act is killing or capturing the fox. In patent law, the act is filing the application. The shift from the old first-to-invent system to first-inventor-to-file is a rehash of the majority-dissent split in Pierson."
"The supplement works through each of the major IP regimes in turn. Patent law provides the closest analogy to the rule of capture. Copyright is different: protection attaches automatically at the moment of fixation, no examination required, and independent creation is a complete defense. Two photographers can take nearly identical pictures of the same Burr Oak tree, and each owns a valid copyright."
Patent law's shift from a first-to-invent regime to a first-inventor-to-file framework treats filing as the decisive act that establishes priority, mirroring a rule of capture. The earlier system rewarded initial conception plus diligence in reduction to practice, analogous to awarding a pursuer who was in hot chase. Patent practice now requires a clear, unambiguous act of capture. Copyright protection vests automatically upon fixation, requires no examination, and allows independent creation as a complete defense, so identical works can each be owned. Trademark rights arise through use in commerce and protect goodwill and mental associations.
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