America: Last in Line for First to File System
In America, the patent process has always been a first-to-invent patent regime. The United States now joins the rest of the world in first-inventor-to-file. Section 3 of the America Invents Act contains the controversial centerpiece of the patent reform statute, which changes the patent application process. Under the previous system an inventor could produce a date stamped note, proving they were the first inventor and defeat any challenger who may have filed before them. The rest of the world has already been operating in a first-inventor-to-file system where the first inventor to file a valid patent gets the rights.
This first-to-invent system has been viewed as beneficial to smaller entities when dealing with the might and money behind large corporations. Many smaller inventors complain that under the new system large corporations have a window to steal ideas and file the patent first. However there is hope under the new system in the form of an exception. In section 102 of title 35,there is a fundamental change in the role of disclosures and under the new system public disclosures can serve as a place hold until the actual patent application. Disclosures can include official postings on company websites, presentations or demonstrations at trade shows, even postings by company employees on social networking sites.
Pre-filing disclosures do have a downside. Many international patent regimes do not have a “grace period” in which to file for patents. While a pre-filing disclosure may preserve the inventor’s rights within the United States, it may cost forfeiting rights elsewhere. This is a large change for United States companies and it will take time to adjust. The USPTO saw a swell of applications on March 15, 2013. A good patent attorney will be able to digest the changes under the AIA and enable companies to navigate through these new waters.