You may be aware of the Leahy-Smith America Invents Act.
Passed in 2011, and just going into effect last month on March 16, this law represents a sweeping change in American patent law.
From the beginning of patent law in the United States, we have operated under a “first to invent” system. Therefore even if someone else filed a patent before you, if you could somehow prove that you had not only come up with the idea (remember, no law anywhere on earth protects ideas alone) but a “reduction to practice,” then you would have grounds to invalidate the subsequent filing by the other party. Whether or not you would be able to afford the often drawn-out legal proceedings is another matter.
But now we are on a “first to file” basis, like much the rest of the world. This means that even if you invent something first, have meticulous inventor logs and other forms of proof of your primacy, if you do not file first, you will not get a patent.
This is widely seen as an advantage for large companies and patent trolls who can rifle off application after application. For many inventors and small business people, filing a patent is an expensive and drawn out proposition.
There are some interesting aspects to the law, including:
-If you have been using substantially the same invention for more than a year before the date of another party’s filing, you will still have the ability to continue exploiting the invention in the same way, with some limitations.
-The definition of prior art – previous disclosures which can prevent a patent from being granted or invalidate an existing patent, has been widened to include more international information.
This law is an important change to patent law, and it’s important that you be aware of it if you have any plans to file a patent now or in the future.
