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Patent Reform

Posted Thursday, August 4, 2011 by Mike Gibbons

The system of patent law of the United States embodied within Title 35 of the United States Code is about to be revised by the most significant changes in decades. “Patent Reform,” as the current effort in Congress to update U.S. patent law is known, includes a number of aspects that are important for inventors to understand. Bills have passed both chambers of Congress, and while the differing bills have yet to be reconciled, certain revisions to the law are almost certain to be incorporated.

Among the significant updates is a move of the U.S. patent law from a “First to Invent” system to a “First to File” regime. Currently, when two applications disclosing the same subject matter are filed, the United States Patent and Trademark Office generally issues a patent to the inventor or group of inventors who invented first. Hence, the U.S. patent system is a “First to Invent” system. Today, even when a different inventor files an application for a patent earlier than the one who invented it first, the patent goes to the later applicant who invented first.

The “First to Invent” system in place in the U.S. is in contrast with the “First to File” regime that is common in most of the rest of the world. In countries other than the U.S., there is a “race to the patent office” among inventors, because the applicant who is first to file an application receives priority, irrespective of who invented first.

Among the changes proposed by both patent reform bills passed by Congress is a shift in the U.S. patent system to a “First to File” system. For harmonization with other world patent systems, in general the first inventor to file an application disclosing a particular invention will be the one to receive a patent for it, once the new legislation becomes law.

What will be the impact on inventors filing applications for patents in the United States? Legal scholars believe the “First to File” provision may favor corporations or larger organizations at the expense of individual inventors. In a “race to the patent office,” it seems likely that those with resources at their disposal will be most able to get a patent application on file expeditiously. Others foresee a net increase in the number of applications as a result of this aspect of patent reform, as inventors may be less willing to wait until their invention is refined or perfected before filing an application for a patent.

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