Amazon Patents the Milkman 365
theodp writes "Got Milk? Got Milk Delivery Patent? Perhaps unfamiliar with the concept of the Milkman, the USPTO has granted Amazon.com a patent for the Recurring Delivery of Products , an idea five Amazon inventors came up with to let customers schedule product deliveries to their doorsteps or mailboxes on a recurring basis, without needing to submit a new order every time. 'For instance,' the filing explains, 'a customer may request delivery of one bunch of bananas every week and two gallons of milk every two weeks.'"
Comment removed (Score:4, Informative)
Re:Way to go, patenting the fucking obvious (Score:5, Insightful)
You get the feeling that now the housing market is bust we need a new a new commodity to inflate into the next mega bubble.
Ladies and gentlemen I give you the new economy - trading patent portfolios.
1. Write down everything that has ever been done in human history on bits of paper
2. Convert bits of paper into patents
3. ?????
4. Profit!
Re:Way to go, patenting the fucking obvious (Score:5, Insightful)
Re:Way to go, patenting the fucking obvious (Score:5, Insightful)
Even without considering prior art, this is not an invention.
It's not patentable matter.
Why is USPTO asleep at the switch?
This would fall under "Business method" patents. As for recurring deliveries without reordering, maybe my weekly newspaper should print a story on this "new" business method. They've only been doing this since they started.
Re:Way to go, patenting the fucking obvious (Score:4, Interesting)
I used to have vitamins shipped to me every couple months on a subscription basis. I'd be very curious as to what about this patent is novel in any way.
Re:Way to go, patenting the fucking obvious (Score:5, Funny)
You don't get it man... they are doing it on the internet
Re:Way to go, patenting the fucking obvious (Score:4, Funny)
If they have indeed invented a way to ship items on the internet, rather then on delivery vans, I think they deserve the patent! :D
Re:Way to go, patenting the fucking obvious (Score:5, Funny)
It's clear we don't having any budding Einsteins at the USPTO office.
Re:Way to go, patenting the fucking obvious (Score:5, Informative)
Why is USPTO asleep at the switch?
A rejected patents entails a relatively small application fee, needs a motivated rejection memoir from the examiner, which can be appealed and ensures a long processing time of the patent application.
On the other hand, an accepted patent means recurring renewal fees for the USPTO, and a painless job for the examiner which is paid in part depending on how many applications he can process per month.
Does that answer your question?
Re:Way to go, patenting the fucking obvious (Score:5, Informative)
Re:Way to go, patenting the fucking obvious (Score:5, Insightful)
35 USC 101: Patentable Subject Matter "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
That's the black letter law and has been for quite some time. Not saying it is right, or that the interpretations haven't been vastly overextended, but patents don't cover just inventions.
Oh bother... someone has been futzing with the word process.
There is an apparent corruption of the word process that confused a physical process with a logical process. The process for making steel is not the same as a process describing how to manage the making of steel.
Frost Pist! (Score:4, Insightful)
What about ice delivery?
You kids with refrigerators stay off my lawn!
It's official (Score:3, Funny)
Re:It's official (Score:5, Insightful)
Apparently, you can take any patent in the database, copy-pasta in a word processing document, go to the end of the document and add these characters:
And you have a new patent, ready for filing.
This is becoming absolutely absurd.
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I love pasta. May I license your patent?
Re:It's official (Score:5, Funny)
No.. but add "...on a computer" on the end of it and it's your innovation.
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Does that mean anyone who writes spaghetti code will now owe royalties to him? Entry level programmers, and the companies that hire them, will be bankrupt within a day.
Re:It's official (Score:5, Insightful)
The thing is, that this wouldn't be patentable in real life, even when patents first began.
Back then:
"Hey, I want to patent something?"
USPTO: "What?"
"A customer requests a product, not just once, but to have it delivered to them regularly. We keep their names on file and send it out and collect payment at the end of the month."
USPTO: "That's not an invention, that's how you run your business. Fuck off."
Re:It's official (Score:5, Insightful)
More closely to the actual patent:
"My invention is a method [wikipedia.org] for business, where I have a machine that will listen to my customers, record what products they want regularly, and maintain an ongoing list for each customer. Whenever a product on the list needs to be ordered so it will arrive when the customer wants it, this machine will alert me place the order on the customer's behalf... on a computer."
Or in other words, it's not really like a milkman, or even how a milkman operated, but let's not let that get in the way of our Slashdot-mandated rant against the USPTO.
Re:It's official (Score:5, Funny)
it's not really like a milkman, or even how a milkman operated
I was a milkman once, let me tell you it was a tough job. I had no idea what my customers wanted, when they wanted it, or hell, I didn't even know where they lived, I just wandered around town until I ran out of gas then dumped the whole load of milk in the ditch and walked home.
Just think, if only someone had invented a way to keep a list of people, what they wanted, when they wanted it and where they wanted me to drop it off, I might have been able to keep my job a second day!
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Now, see, if you had only had Amazon's system, you would have had each house's order readily packed in your truck, whether they were regular customers or not. All you'd have had to do would be drive past their house and throw the order in the general direction of the door, porch, or doghouse with your apparently-normal level of concern. No worries about special orders for the day or who's paying when... just driving and tossing.
Re:It's official (Score:5, Interesting)
Apparently, you can take any patent in the database, copy-pasta in a word processing document, go to the end of the document and add these characters:
And you have a new patent, ready for filing.
In a 2007 ruling [wikipedia.org] the Supreme Court said these sorts of "combination patents" are not valid. So I can't see how the USPTO can justify continuing to issue them.
Re:It's official (Score:4, Insightful)
Well, Amway Corp has been doing this *on a computer* for quite some time. And they have lawyers that *might* take exception to having their business processes patented by someone else...
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You forgot to put on the sunglasses first.
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I propose to implement a business method by which you don't have to live on this planet anymore - ON A COMPUTER!
I believe you owe me royalties
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We clearly need more Einsteins working in patent offices.
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You mean "There's life Jim, but not as we know it"?
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We know it, we just don't want to.
Sounds like a subscription... (Score:5, Insightful)
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Strangely enough, I've managed my magazine subscriptions through Amazon for years. So their own stuff is prior art! And old enough they can't patent it anymore.
Re:Sounds like a subscription... (Score:5, Informative)
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Do they deliver to basements?
Yes, they do! (As long as the basement has an outside door.) In fact, most large UK supermarkets do home delivery for a modest charge, and I know people who do all of their grocery shopping on-line. They do leave the house, but not for grocery shopping.
Why patent? (Score:3)
Re:Why patent? (Score:5, Insightful)
Because they can use it to threaten smaller competitors.
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Or they figure it is cheaper and easier for them to patent it than to deal with some other company patenting it and harassing them.
Defensive publication (Score:4, Interesting)
Re:Defensive publication (Score:4, Insightful)
except you can't use those to threaten and counter sue and attempt to force them to drop their suit.
for an analogy...say you are a bully carrying a stick out to steal someones lunch money. you come across victim A who is holding up his backpack defensively...might as well take a few whacks at him, he can't do much to you, and maybe you will get lucky and his lunch money will fall out of his pockets...worse case you hit him too hard and your stick breaks
on the other hand you come up to victim B who also has a stick. now you have to consider whether you are the one that will get the beating. it is similar to the debate about guns, having your own stick puts you on equal footing to your aggressor.
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So this is just a defense patent. To squat on it before anyone else.
The US Patent Office seems like a waste of time and money to me.
Nearly all the good stuff is kept secret and proprietary and unfiled anyway.... and all the big 500 companies run their employees ragged filling out and filing bullshit.
All the megacorps usually have folders of patents, in a Mutual Assured Destruction situation with all the other megacorps. If you're a small guy, good luck enforcing your patents, it usually means who has the
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haha, you think it is defensive!
how soon we forget "1-click"
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Joke of the year. (Score:3)
Really??? (Score:5, Insightful)
It took five of them to come up with this brilliance??? Amazon must have some stellar intellects...
Re:Really??? (Score:4, Insightful)
Amazon must have some stellar intellects...
Or an R&D department filled with lawyers instead of engineers.
Re:Really??? (Score:5, Funny)
"... an idea five Amazon inventors came up with ..."
It took five of them to come up with this brilliance??? Amazon must have some stellar intellects...
On the other hand, it does open up a new avenue for the old joke setup;
How many Amazon inventors does it take...
- to screw in a lightbulb?
5 - one to screw it in, one to file a patent on the process of rotating an object until it is seated in a socket, and 3 more to pat each other on the back.
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Amazon would never be so ineffective. They certainly would file several patents on this: One for rotating an object in order to get it seated, and another one for stopping the rotation at the point where it is seated, both with subclauses for the case that the object is a light bulb, that the place it is put into is a light bulb socket, and that the direction of rotation is clockwise (and to be on the safe side, also a subclause for the case where you put it in by counter-clockwise rotation). Then two furth
Re:Really??? (Score:5, Funny)
Why did the 5 Amazon inventors cross the road?
To slap the chicken with a lawsuit for not purchasing a license to their method of relocating livestock from one side of a tarmac surface to the other via bipedal forward kinetics patent
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You forgot: "...on a computer."
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Actually it took one guy to come up with it, the rest was this...
http://dilbert.com/strips/comic/2010-08-05/ [dilbert.com]
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Dilbert is luck he only got his boss's name on it. I have a patent filed by an Internet company that has about a dozen names on it. One other engineer, besides myself, created all of the work described in the patent. But every manager in the two chains-of-command (tech and business) involved is on the patent, some of them people I had never heard of, plus as few who were completely unknown to me. The order of listing naturally has us two engineers at or close to the end of the list.
Ok... (Score:2)
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Honestly? Because just by itself it looks really small and harmless. No one would ever use it all by itself because it likely would be thrown out of court and/or invalidated. However to combine it with a hundred other equally ridiculous patents and you go after your smaller competition. The smaller guys might be able to fend off a few patent attacks, but if you throw your entire portfolio at them then it takes significantly more resources to fight. So the competition either capitulates, or licenses you
This is actually pretty useful... (Score:5, Funny)
...I use it so that I get a new pack of socks every 6 months...
Nothing better than coming home from work to a fresh package of socks!
ERMAGHERD SCHOCKS!
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Western Science Is So Wonderful (Score:2)
So if you happen to be passing through Waterbury, Conn., and see a solid gold milk truck driving itself through the streets, you'll know it's Jeff Bezos.
How many amazon inventors does it take... (Score:5, Funny)
How many amazon inventors does it take to screw in a light bulb? No one knows, but it takes 5 to figure out how to automatically send you a new one every 6 months.
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Well ok then. (Score:4, Insightful)
But but but... (Score:2)
...you're doing it "using a computer"!!
That makes it new, right? /sarcasm
Hmmm ... (Score:4, Interesting)
Columbia House did this years ago. I know many people get their oil or propane delivered regularly. TFS points out the milkman. Newspapers have been delivered for a long time.
This is a business process, not an invention from what I can tell.
Yet another patent which is a "system and methodology for doing something we've been doing for decades, but with a computer".
Epic fail to the USPTO.
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I signed up on the internet to have diapers delivered on a schedule in 2007, 2 years before the filing date.
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Wow, sorry to hear you need diapers, but glad you have the courage to admit it. ;-)
But seriously, automated, recurring delivery is decades old, possibly more. How this could even be patented is beyond me.
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Yeah, but is this a "new method of doing business" -- or an old way of doing business, but with a computer?
I'm not getting a whole lot of "new method" out of that.
fresh direct is prior art (Score:2)
maybe even webvan
in the NYC area we have had a bunch of food delivery startup over the last 15 years
in the dot bomb era we had webvan. you order food online and they deliver. they bombed.
peapod is owned by a few B&M food stores and delivers
Fresh Direct is the new all online food store in the NYC area. they even partner with nice buildings here in NYC to offer special holding rooms for food and to have the doorman sign for it. they have had subscription food delivery for a long time.
Fresh Direct is a lit
Doesen't peepad have patents on stuff like this (Score:2)
Doesen't peepad have patents on stuff like this?
What if? (Score:5, Interesting)
Are Amazon deliberately trying to discredit the USPTO, or even the entire patent system?
This patent fails on so many criteria: prior art, lack of novelty, obvious. If it's granted, it's a crock.
...laura
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Most likely Amazon's policy is to patent anything and everything they can come up with. There is no penalty for a rejected application, so the worst that can happen is they waste some lawyer-time - if they were more selective, they'd risk not patenting something good, or being beaten to file by a competitor who invented simutainously but didn't waste time deciding if the invention was patentable.
Makes me wonder (Score:2)
A software patent for something acting like the milkman that actually references milk deliveries? Something smells fishy.
first ti file? (Score:2)
Has first to file started yet?
If Amazon is the first to file on this does it matter how many people have done it before or even if they didn't invent it. It's all about who gets first post at the USPTO now isn't it?
Please help me understand. The broken patent system never made sense to me and the things Congress does to 'fix' it, like first to file, make even less sense.
Jeff Bezos IS A GENIUS... (Score:4, Funny)
...his ACTUAL goal is to have software patents abolished entirely - while simultaneously protecting his company from others who patent things out of greed and avarice.
This explains why he continually patents the most ridiculously obvious things - it's an effort to eventually (so he hopes) get the non-technical world to realize how absolutely f***ing stupid the software patent system is. Sadly, he appears to think that his efforts need to be even more obvious; ergo, the latest patent.
I'm telling you - GENIUS...
BTW - On a serious note, I'd be embarrassed as an engineer to have my name as 'inventor' on a patent so blatantly f***ing stupid.
No previous art (Score:2)
We're doomed. (Score:2)
I'm going to patent piping natural gas to homes. It's crazy but it just might work.
Re:We're doomed. (Score:5, Interesting)
The inventor of that, William Murdoch, actually didn't patent it because James Watt Jr informed him that it wasn't patentable.
James Watt's father, the more famous James Watt of steam engine fame, then went on to steal the idea for himself.
*The* Watt is remembered as the father of the steam engine. His true contribution to history wasn't really technological: He invented patent trolling. Boulton and Watt's firm dominated the industrial revolution by systematically patenting every little detail they could come up with, right down to individual layouts of gears, and then letting the lawyers loose on anyone who dared compete. Far from advancing steam technology, he deliberately held it back, fearful that smaller and more practical engine technology would be disruptive to his highly profitable business manufacturing large stationary engines. Murdoch eventually became a partner in the firm once it passed from Sr to Jr, having established his loyalty both by his skill at invention and his willingness to perform industrial espionage - offering assistance to unsuspecting inventors and smaller steam firms, only so he could gain access to their workshops and later testify in court that he had seen them using mechanisms patented by Watt.
Next patent (Score:2)
Sorry, Amazon (Score:2)
Sorry, Amazon, but I have pre-existing artwork on this. CSA's and standing wholesale orders for our farm products are delivered to customers on a re-occuring basis.
Since I'm a generous and reasonable farmer I'll settle out of court with Amazon for a mere Billion dollars for their attempt to infringe on my business model.
But, But... (Score:2)
This gives me an idea of some perverse strangeness, I need to create a patent for the automated regular delivery of items that will then schedule automated regular delivery of other items. Damn now I can't as I have publicly disclosed my patent idea.
This time it's real ... (Score:4, Interesting)
We were used to plentiful of uninformed /. 'news' over the last decade on patents and stuff; when 'filing' and 'granted' was considered the same, effectively, and lots of nonsense, like the contents of the abstract being considered as the underlying idea, or even as the legally binded grant, and much more.
In a nutshell, I expected the same, yet again, and was almost reluctant to even go into the details and actually read the document.
OMG!
It is a patent
It does grant what the summary said
Incredible.!!
There is a comment from AC further up ("Bad summary of patent") stating correctly that it does contain a last minute change as necessity for potential infringement. True. But I can't believe that there is no anticipating document before 2009, where a recurring delivery system of any sorts had a 'last check' of possible modifications by the customer before the actual delivery.
Much too often, I had to come to the defense of my former colleagues in patent examination. In this case, however, I need to agree when someone questioned if there are signs of life left in the office.
Actually, I doubt it.
Write to your congressperson (Score:4, Informative)
Everyone, repeat after me: "Business methods should not be patentable"
That means:
- No one-click ordering patents
- No more patents on online auctions
The courts cannot fix this. It is up to congress. [eff.org]
Emulation ALONE should not qualify it (Score:3)
Just like the "slider lock" smart-phone case; any emulation of an existing non-patented physical process should not by default get a patent. A specific implementation of an emulation, okay that may be patentable, but not the mere act of emulation.
Thus one cannot patent emulating baseball itself because the act of baseball is not patentable (the game has been around a while). However, a specific algorithm for emulating the game is perhaps legitimately deserving of a patent, or at least a copyright. But that should not cover ALL baseball emulation attempts by competitors; only those that use the same algorithm. (Likely there are many ways to emulate baseball, to varying degrees.)
Same point, two days ago... (Score:3)
I said it before and I'll say it again. Taking something that exists and making it digital (or on the internet or on your phone or any "just-add-technology" change) doesn't make it new. Prior art should still apply...I refer you to my comment on Tuesday
Obvious, Novel, and Prior Art aren't just digital [slashdot.org]
Fire the reviewers (Score:4, Insightful)
This is one instance where the incompetence of the reviewers is so blatant that they should no longer be working for the USPTO. There is a point that people need to be held accountable for their decisions. The USPTO has become too much of a rubber stamp under the idea that the courts will sort out any issues. The system breaks down under that model as many people do not have the money to go to court. The USPTO is hardly a speed bump in the patent process any more.
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As I understand, they patented their subscribe and save feature which has been around for years. How nobody else implemented this almost justifies that amazon should get the patent... almost, it's a stupid patent.
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Re:Ok (Score:5, Informative)
How nobody else implemented this almost justifies that amazon should get the patent...
Newspapers implemented it a few centuries ago. If you subscribe to a newspaper, it is delivered to your door, and you get a discount off the newsstand price. You can also vary the schedule. For instance you can get it delivered everyday, or just on Sunday.
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You idiot kids think you invented having a brain...this was exactly how just-in time ordering was already done on a computer by the auto industry in the 80's. Electronic data interchange (EDI) with exactly this sort of capability wasn't a new concept even then. "Please deliver me X widget assemblies and Y doodads every 9 days until I use EDI to tell you otherwise". Yup, remember first doing that myself in 1991.
Re:Ok (Score:4, Informative)
Still, it's hardly rocket science, is it? It's more flexible & sophisticated than telling the milkman to bring you a pint every other day, but it's not a qualitatively different thing like a jet compared to a piston engine.
I'd be surprised of most ERP systems don't have something like this.
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Why all the hate for the first group that could actually put all the pieces together and make it work?
No one here hates them for "doing it," but some hate them for "patenting it." I don't even hate them for that. I don't hate Amazon at all. Amazon is just doing what any big company in a similar situation would do: try to patent everything and see what goes through. My "hate" is reserved for the USPTO. They supposed to be acting in the interest of the citizens. By allowing garbage patents like this, they are stifling competition and making our economy less efficient.
When elephants fight (Score:5, Insightful)
They are patenting an entire delivery scheduling methodology for customer order management of groceries (etc) that will re-occur on a predictable and fairly precise time period of the customer's choosing.
I have a picture of a milkman's horse lifting his blinkers with one hoof and rolling his eyes at this patent, it's just ordinary business practice for any company that delivers stuff to your door. The local chemist paid me to deliver stuff on on a push bike way back in the 60's. Most family's had one car (at most), the chemist had plenty of regular customers who had difficulty getting around so he bent over backwards to accommodate their needs. He didn't have a computer and trucks, he had an order book, a big black phone, and a bunch of eager kids on push bikes who had more than enough local knowledge to make UPS blush. If a customer was in dire need during school hours, he would get in his VW and deliver it himself. Virtually the same service is available today but it's organized by the government, you get a qualified nurse in a tiny car rather than a grotty kid on a push bike. There is however a shit load more paper work involved to join up.
Copyright protects Amazon's software implementation of this age old business practice, the only possible use for a patent such as this is to burden and stall serious competitors with serious litigation, as in Apple vs Samsung. Software patents are a legislative experiment that failed. It was worth having the experiment, but now we know that all it does is provide an arena for elephants to fight, and we all know what happens to the grass when elephants fight.
Re:Ok (Score:4, Insightful)
I'm not arguing that it's a defensible patent, but it's also not patenting what the summary or TFA claims. Here's the #1 core claim of the patent:
In other words, it's a particular implementation of a subscription system that has to include every element in the above list in order to infringe. It would be easy to work around this in implementing a subscription system. It's also not generally how milkmen used to operate. It's also PROBABLY covered by prior art, but whenever I hear "X just patented Y that's stupid LOLOL!" I have to go to the claims, and I usually see that, no, only a particular implementation/method for accomplishing Y is covered.
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Re:Ok (Score:4, Insightful)
Exactly.
Its pretty amazing when you read all the claims, and imagine dragging and dropping a dozen eggs onto the manifest of a truck that will just happen to be near your house at 7pm every second Wednesday. And then being able to put that delivery on vacation hold, or add a one time order of 12 pork chops for the big barbecue you are planning next Saturday. And the delivery will take place within the time period you specify so the neighbors dog doesn't run off with your chops while you are at work.
Amazon has to know where the trucks will be at future points in time.
Provide you with a way to put products on that truck, set them to be periodic or one time, Adjust your orders, add, subtract, reduce, or hold.
All from your computer, and (hopefully) from your smartphone.
Its way more ambitious than the Milkman, and I'm not aware of anything that comes close.
People have to stop the knee-jerk reaction to headlines.
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There's this thing called delivery logistics, and Amazon is at best hundreds of years late to be inventing it now.
Re:Ok (Score:4, Insightful)
First off, yes, I read the patent.
Amazon is, of course, doing something on the scale that nobody else has attempted. They'll probably be very good at it, and good for them.
However, that has nothing to do with the patent. The processes described by the patent are the exact same thing that people have been doing in real life on smaller scales for hundreds (or maybe even thousands), of years.
There is nothing ... NOTHING ... in that patent that enables them to do this on a large scale, except for the automation that a computer provides (which, unfortunately, seems to make anything patentable these days). If you disagree, please call out something specific, like an actual claim in the patent, and a description of why it's something new and not just the first and most obvious solution their engineers came up with.
Congratulations to Amazon if they pull off this scale of delivery. But what they're doing should in no way be patentable, at least not as described in the patent that was awarded.
Re:Ok (Score:5, Informative)
As I understand, they patented their subscribe and save feature which has been around for years. How nobody else implemented this almost justifies that amazon should get the patent... almost, it's a stupid patent.
When you look at the actual patent [uspto.gov] you see there was plenty of prior art cited. If Amazon cited these you can bet they believe (as does the USPTO) that the Amazon patent is significantly different, and does not infringe.
You have to READ the patent to see what part of this is new.
For instance Amazon states in the Patent
Some online merchant systems may provide customers the ability to place standing orders for delivery of consumable products on a recurring basis, such as every week or every month. However, these systems may be limited in their flexibility for allowing modifications of the recurring orders or for allowing the addition of one-time or specialty products to an order. Further, the customer may not be able to schedule the recurring orders for the same time and day of each week or month, thereby making it difficult for the customer to arrange to be present at the delivery of perishable goods or other consumables.
This patent is different, in that it allows Scheduling not only the day of a re-occurring delivery, but also the time. This is pretty significant. You get to choose the time slot from available time slots, when the truck will be in your neighborhood on the days you request, at the hour you request. And you do this by some form of drag and drop of products to your door step, selecting from the available time slots (presumably when the truck will be there). Pretty specific if you ask me.
Further, you can easily change it by adding or subtracting items (one time, or every scheduled time) to be on that truck, put it on vacation hold, etc.
(If Amazon can actually pull that off in any grand scale, I'd be surprised, but that's not the patent office's problem.)
Further virtually every claim in the patent is proceeded by the words: A computer-implemented method.
Dammit! I hope there is an App for this!!
This, the computer scheduling done by the customer, combined with picking the actual delivery time slot from the available time slots, is the bit that they are patenting. Not the milkman, not the newspaper boy, not your local grocery weekly delivery.
The closest prior art is the cited Amway patent [uspto.gov]. But it merely suggests to the customer that they might want to order some more Amway for future delivery, and says nothing about the details of precision or picking of exact days and time slots.
I'll leave it to the lawyers (and wanna-be lawyers) among you to pick out the details where this patent differs from the others, but do try to contain your rage till you at least Read the Patent, and ignore the hype in the summary. Its really pretty clever, and relies on Amazon knowing the precise location of the delivery vehicles on their routes in the future, and using that information, allowing the customers to make sure a half dozen bananas are on that truck, and will arrive at their door step when they are home to receive them.
Ambitious, and fairly novel if you ask me.
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First to file affects priority, not novelty (Score:2)
The United States will switch to a first-to-file system [...] So it doesn't matter if milkman have been using this invention for 50+ years.
How not? First-to-file affects only "priority", or conflicts between one patent application and another patent application. As I've explained [slashdot.org] before [slashdot.org] (as have others [slashdot.org]), it doesn't affect "novelty", or aspects of a patent application anticipated by prior art. Think of publication as a "filing" that ensures that no one gets the patent.
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First-to-file only applies when two or more people apply for the same patent within the application period. Prior art is still relevant. The rest of the world with less-broken patent offices have always been first-to-file.