First to File Patent Law Coming Soon to USA
On June 23, 2011 the House of Representatives passed the "America Invents Act." A similar Bill passed in the Senate last March. Both Senate and House passed their Bills by large majorities. They will now merge the two Bills into one (a process called "reconciliation") and pass it on to President Obama. The President has said he will sign it. The law will switch America from a first-to-invent system to a first-to-file system. The law will also expand the type of ‘prior art’ that can be considered for patentability and sets up a new process for challenging patents at the patent office. It's a big win for the big guys and will mean substantial changes in how independent inventors develop their inventions.
Currently an inventor can claim the right to a US patent if the inventor can prove that he or she was the first to invent. The surest proof has long been a filed patent application. But other kinds of proof are acceptable - dated journals, photographs, letters, videos and the like can be used to substantiate a claim of inventorship as of a certain date. When the new law passes, the only thing that will matter is the filing date of the patent application. This will bring US patent law into line with Europe and other parts of the world.
Practically speaking, in the trench warfare of patent litigation, a patent filing date trumps a tattered journal almost every time. The new law will extinguish what has long been a weak claim for inventorship and, hopefully, eliminate lawsuits that had virtually no chance of success.
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