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Patents and the America Invents Act

On March 16, 2013, the America Invents Act (AIA) will go into effect.

The main change in this act is that right to patent an invention will go from a “first to invent” rule to a “first to file” rule. This means that the first person who files for the patent will be entitled to receive it, rather than the first person to invent it. The hope is that this will phase out interference proceedings used to resolve disputes regarding who first invented a technology.

The other part of the patent process this act will affect is referred to as prior art. Prior art is any information about the invention disclosed to the public prior to the application date. The rule under the AIA is that a person shall be entitled to a patent unless:

  1. The claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
  2. The claimed invention was described in a patent issued under Section 151 or in an application for patent published or deemed published under Section 122(b) in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

Unlike some stricter first-to-file systems, the AIA will continue to permit some exceptions to what constitutes prior art for a one-year grace period. For example, an inventor’s own public disclosures within a year of the effective filing date does not constitute prior art under the AIA.

The best way to ensure that you receive a patent is to file the application as soon as possible and to file multiple provisional applications to ensure you receive the earliest filing date.


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