Patent Act: First to file and its exceptions
On March 16, 2013, the United States will transition from a first to invent system to a first to file system under the America Invents Act (“Patent Act”). As the March 16, 2013 date approaches, inventors and businesses should consider the following things when implementing a patent protection strategy.
Under the Patent Act, any disclosure dated prior to the filing date of the inventor’s patent application will considered prior art and bar the inventor from being granted a patent on the invention unless one of two exceptions applies. Hence, the general rule is that you must be the first to file. Under the first exception, if the prior art disclosure is 1 year or less prior to the filing date of the inventor’s patent application and the prior art disclosure is
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Invention promoter, frequently asked questions
An Invention promoter must abide by certain federal laws. In this article, a discussion of the rights of consumers and the responsibilities of an invention promoter are discussed. An invention promoter must disclose its track record of obtaining profitable deals and the ratio of positive invention evaluations to total evaluations among other statistics. Moreover, if you have been damaged by an invention promoter, the statute provides for attorney fees and other remedies.
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Irvine patent hub of OC
Irvine is the patent hub of Orange County, California. Irvine businesses and resident received about 10 times more patents than their counterparts in the surrounding cities. Moreover, for the past two years, the Irvine patent community has received more patents compared to pre-recession years.
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Public availability under the America Invents Act
The first inventor to file system under the America Invents Act adds a catch all category that includes anything publicly available. Some argue that the catch all phrase narrows the meaning of on sale to exclude secret offers for sale. Expect litigation in this area.
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First inventor to file system under the America Invents Act
Under the first inventor to file system, the inventor that wins the race to the patent office is awarded the patent and any public disclosure by the inventor before filing a patent application bars the inventor from seeking patent protection except under two very important exceptions.
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Virtual patent marking and false marking claims
America Invents Act allows companies to mark patents with patent number by referring to a web address. Also, false patent marking claims can only be brought by the government or someone with a competitive injury.
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Be clear in drafting claims
Clear claim language is generally the primary goal of claim drafting. In the following case, the claim recited a means plus function limitation. These types of limitations appear to be broad but are limited to the specific structure disclosed in the patent application and linked to the function stated in the means plus function limitation. The means plus function limitation in the patent at issue recited “a release means for retaining” which is confusing because it is unclear whether the function is the release function or the retain function. The Court held that the claim is limited to structure related to both the release and the retain function. Court held: no infringement based on this claim construction. The point of this case is to follow the simple means plus function format of “means” followed by a function, preferably only one function.
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Duty to disclose owned by everyone substantively involved
A company president who is intimately involved with the prosecution of a patent application even if the company president is not an inventor has the duty to disclose relevant information to the invention to the Patent Office. In the present case, the company president failed to disclose a sales demonstration that occurred more than one year prior to the filing of the patent application. The court held the patent unenforceable due to inequitable conduct.
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Patents are now Stronger
The evidence needed to invalidate a patent needs to be clear and convincing regardless of whether the information was before the Patent Office. This is a higher standard than the preponderance of the evidence standard. Hence, this case strengthens patents because it eliminates arguments that might have been used to invalidate patents.
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At the Patent Office, what happens?
Once a patent application is filed, you can expect to wait. The Patent Office typically takes about fourteen (14) months or more to examine your patent application on the merits. If the patent application is filed as a provisional patent application, your provisional patent application is not never examined. It is also abandoned after 12 months by operation of law. You must file …
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