In 2013, the U.S. switched over from a first-to-invent patent system to a first-to-file system. In a first-to-invent system, if two or more people filed a patent application for the same invention, the patent office would give the patent to the person who could prove they were the first to conceive and diligently reduce the invention to practice. Basically, even if another person filed their patent first, the original inventor would receive the patent. First-to-file is exactly the opposite. Whoever files the patent application first gets the patent.

Why the Change?

First-to-invent seems like the fairer method. After all, if you invent something, you should get credit for it, right? Well, the change to first-to-file was an attempt to harmonize the United States patent law with the rest of the world. And the reality is that it’s actually pretty rare for a patent to be stolen and then given to the original inventor. In 2007, interference proceedings arose in less than one percent of all applications, and only seven times were the patents given to the second person to file.

So the problem of stolen inventions isn’t widespread, but many still feared that this system would give power to patent trolls that would file patent applications on inventions released, but not filed on, by underfunded startups. The thing is, first-to-file in the United States has a serious difference from its counterparts around the world. In the U.S., we have a disclosure rule that helps protect inventors from this type of theft.

Inventors can publicly disclose their invention and receive a one-year grace period to file the application. So a startup that publicly discloses their invention at a conference, or even in a blog post, can still file their patent application and receive a patent within the one-year grace period.

However, it’s worth noting that this first-to-disclose system only applies to U.S. patent law, and that foreign countries operating under first-to-file systems typically don’t have this law. So American inventors would not be able to pursue patents for their previously disclosed invention in most other countries.

What You Can Do

The new law makes it even more important to quickly file a patent, or at least publicly disclose the invention to prevent someone else from being awarded your patent. This means companies should be implementing processes that identify inventions as quickly as possible, and then make informed decisions on whether to file a patent or disclose the invention in order to protect it under U.S. patent law. If the invention is worth patent protection, it may be a good idea to file a series of low-cost, provisional applications during the development of the technology.

We hope this information has been useful for you and your product development team. If you need more help, contact Pivot International today. We offer product design services, manufacturing services, prototyping, and even business development services. Find out what we can do to help you get your product to market.