The central provisions of the Leahy-Smith America Invents Act (the "AIA") went into effect in March 2013, revolutionizing the United States patent system. Traditionally, the United States had maintained a "first-to-invent" patent system, which awarded patent rights to the first inventor who created a unique invention. However, as the AIA went into effect, not only did the statute change the effects of U.S. patent law, but it also affected how inventors will make the decision of whether to file patents.
How Does the AIA Change the U.S. Patent System?
Before this new provision, the United States Patent and Trademark Office ("USPTO") awarded patents to the individual or entity that invented first, rather than the individual or entity that filed an application for a patent first. Now, an inventor could lose patent rights to another inventor who potentially created the same invention later in time, but managed to file a patent application for the same invention sooner. Essentially, regardless of who conceptualized an invention first, the first to submit a good-faith patent application secures patent rights.
Under this system, inventors have a greater chance of losing their patent rights if they fail to take appropriate actions to file a patent application in time. Accordingly, the USPTO will likely see an influx of provisional applications as inventors take care to submit their applications first. Simply keeping records and documenting the date of an invention will not work towards protecting an inventor's rights any more.
How Does the AIA Affect Inventors and their Patent Rights?
First, inventors no longer have the luxury of preserving their rights to inventions simply because they are the first to invent. To protect patent rights, inventors will need to make quick decisions to file patent applications. To protect patent rights longer, inventors will also need to thoroughly consider whether they intend to seek a patent application before they make new inventions public. Especially if inventors are looking to secure their patent rights outside the United States, they will need to make sure they file for patent protection before they introduce their invention in the international market. If an inventor fails to secure patent rights in advance, he may lose his property right and interest in the underlying invention.
However, even a patent application that is filed first may be invalid if the underlying invention comes from stolen or misappropriated ideas. Therefore, companies that primarily work with new inventions and patent rights should ensure that any invention that comes from outside the company includes written authorization from the patent owner. These companies should also keep careful records of their research and development in the event that a patent infringement lawsuit requires the company to establish that it used the invention in good faith.
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