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US Now a "First to File" Patent Country BradFach

Did you know in March 2013 the United States moved to a "First to File" patent Country?  This post will discuss some of the advantages and disadvantages of this transitions.  

Effective March 16, 2013, the United States joined the rest of the world and move to a first-to-file patent system.   The change comes as the result of the passage of the America Invents Act (AIA) signed into law by President Barack Obama on September 16, 2011.  The United States was the last country to make the switch to a first-to-file patent system after Canada and the Philippines made the move in 1989 and 1998 respectively.

Under a first-to-file patent system, the patent office will award a patent to the first inventor who files a patent application without regard to who actually invented something first.  Under the previous first-to-invent patent system, an inventor had the option to prove to the patent office their date of invention and could be awarded a patent, even if their competitor filed a patent application first.  This procedure to determine the date of invention was termed an "inference proceeding" at the US Patent and Trademark Office and has become obsolete.  Proving your date of invention under an inference proceeding was one of the reasons why it was important for researchers to keep detailed lab notebooks that should be signed and witnessed regularly.  

 

Supporters of the change to a first-to-file patent system claim the move will reduce risk and uncertainty in the patent process and lead to increased investment in early stage technologies.  They also claim it will harmonize the US patent system with the rest of the world.  Critics of the move claim the change will penalize independent inventors and small businesses who may not have a patent attorney on staff or be able to afford frequent patent filings to protect their innovations.   Although the Association of University Technology Managers (AUTM) came out in support of the America Invents Act, many well respected university's within the AUTM community disagreed publically with AUTM’s support and claimed the changes implemented in the AIA will hurt university technology transfer activities as well as university start-up companies.

Because of the First to File system, it is not more important then every to quickly file your patent application with the patent office. 

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