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 (“AIA”). In my opinion, it is more advantageous to have a patent application governed by the first to invent system than the first to file system even though the first to invent system for the most part behaves like a first to file system. What I mean is …
The America Invents Act (AIA) which changes major sections of the current Patent Laws became law on September 16, 2011. Under the AIA, the first inventor to file, not the first to invent is awarded the patent. Other sections changes the law on false marking, attacks on best mode, and many more.
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
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.
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.