As we begin a new year, we wanted to bring you up to date on the most recent happenings in the patent world. I'm sure you have seen the publicity in the past year concerning changes in the patent laws, sometimes referred to as the America Invents Act or AIA. There is one area which we should call to your attention.
The AIA implements a “first to file” law in the U.S. This means the first inventor to file his or her application will be given priority of invention. In the past in the U.S., the inventor who could prove that he or she was the first to invent would be awarded the patent, no matter the order in which multiple inventors of the same invention filed their application. However, as of March 16, 2013, this will change. After that date, if multiple patents are filed for the same invention, the patent will be awarded to the applicant who files first. The bottom line appears to be that applications with an effective filing date before March 16, 2013 have certain advantages over applications filed March 16th or after.
As a result, whereas in the past, you may have waited until a product was ready to be offered to the market to file our patent application, it may now behoove you to file at least a provisional application as soon as possible.
Between now and March 16th, you should consider any new ideas you may have in the “hopper.” The best strategy may be to file some kind of provisional application to establish an effective filing date that allows us to proceed under the old patent laws. It appears there are this and a few other advantages to applications proceeding under the old laws.