The First Thing to Realize About First to File
It’s complicated. That’s not surprising as few laws are as simple as, perhaps, the writers intended them to be, and this is a good example of that truism. Still, in general, as of Mar 16, 2013, the United States changed from a “first to invent” country to a “first to file” country, and inventors seeking patents should know what that means.
The problem is, the law is not well defined, nor has the United States Patent and Trade Office really caught up with the law itself. There are, warn patent attorneys and experts, various loopholes and traps contained within the law as it is written, and inventors should keep this in mind. As should attorneys who have not yet had time to investigate just what the new legislation means for inventors and patent attorneys.
In an effort to inform the public about the changes in this patent law, the USPTO provides a summary of a few main points. It’s a good idea to read their entire summary on their site in order to get a good idea of what to expect. Here are a few of the initial changes:
1. Moves the US patent system to a “first to file” system, instead of a “first to invent.”
2. US patents and applications are considered “prior art” counting from their earliest filing date—whether that filing date was in the US or a foreign country.
3. The requirement that a prior public sale or use be in the US to be considered prior art.
4. Treats joint research agreement patents, as well as commonly owned ones, as being the same inventive entities for purposes of the law.
Inventors, patent lawyers and experts would do well to first read up on the law, then follow discussions of what affect this will have. It may be even more important now that inventors get their patents registered as soon as possible.
