Today, March 16, 2013, marks a major change in U.S. patent law. Until today, the United States has operated under a unique first-to-invent system.Today, thanks to the America Invents Act, the U.S. changes to the system used by the rest of the world, a first-to-file system. What does this mean?
Under a first-to-invent system, if two people file patent applications on the same invention, the patent office awards the patent to the person who is able to prove that they invented (conceived and reduced to practice) the invention first, regardless of who filed their patent application first. In a first-to-file system, however, priority is given to the applicant who filed first, creating what is popularly called a “race to the patent office.” There are ways that the first inventor can retain priority, however, even if they file second. The USPTO is ready for the change, having released its final rule and examination guidelines implementing the new system.
The first-to-file system has been criticized, particularly by those who argue that the system is unconstitutional. The constitutionality of the America Invents Act has also been challenged in court, in MadStad Engineering, Inc. v. United States Patent & Trademark Office.
Without a court ruling blocking the implementation of the Act, however, the system is set to change today. Get your running shoes on!