For over 200 years, the US has operated under a “first to invent” rule. This means that if two innovators independently submit a patent for the same exact invention, the person who can prove that they invented it first is the one who is awarded the patent.

In almost every other part of the world, they operate under a “first to file” rule: if you are the first one to run down to the patent office and hand them your application, you have rights to that invention.

March 16, 2013 was a landmark day for the US Patent Law, in that we now operate under a “first to file” rule and are more harmonized with the rest of the world. However, the US’s system is not a pure “first to file” system; it is more of a hybrid between the two. In the US law, there is a provision that states that if you publicly disclose your invention, you have one year from the time of the disclosure to file the patent, and you can still be awarded it. In this scenario, let’s say Joe and Tom independently develop the same technology. Joe speaks about it at an annual conference (i.e. public disclosure). Tom submits his patent application a month before Joe does. Joe would still be awarded the patent. Had Joe not made the public disclosure, Tom would have rights to the patent.

There are a few articles that I listed below that go into more detail about the potential impacts of the new patent system, so I would recommend you check them out at the links below.

The big question on everyone’s mind is, how will this impact the innovators? Since we are no longer protected by the “first to invent” rule, I imagine that people will be much more hesitant to disclose information to potential investors. I think this will probably hit the small companies the hardest, and here is why. A patent is a significant cost, we’re talking on the order of tens of thousands of dollars. However, most small companies do not have the capital to run to the patent office as soon as they invent a new technology. In order to gain that funding, they need to get the buy-in of investors. However, the more they discuss the technology, the more vulnerable they become to someone else filing a patent before them.

I don’t think we can make an accurate estimation on how much this will impact innovation and collaboration. I’d like to think that since this “first to file” system is present in other countries, we can take examples from their experiences to understand how we should conduct ourselves and still strive towards success.

What are your thoughts on the new patent law?

- Sherri

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