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First To Invent

Wednesday, March 24, 2010 4:56 am

The United States is a “First To Invent” country in regards to patent priority rights. This is different from the majority of countries around the world that recognize only “First To File” rights. “First To File” is black-and-white and very easy to adjudicate. In contrast, “First To Invent” requires careful attention to the Patent Code’s regulations.

Our forefathers allowed for “intellectual property rights” directly in The United States Constitution in their desire to encourage technology and ingenuity in their new country. Backyard tinkerers and Fortune 500 Companies can compete equally in the same arena under the same rules. The system has worked perfectly as conceived for over 200 years with the U.S. leading the world in technological advancements. The system has worked well economically too. In spite of many American manufacturing jobs going to other countries, it has been our Patent, Copyright and Trademark rights that have brought the majority of the profits back home.

The United States’ “First To Invent” system allows an inventor sufficient time to do thorough research, consider the findings, reduce the invention to practice and file a patent application. The time allowed for inventors under “First To Invent” typically results in superior patents. The “First-to-File” countries tend to have company sponsored invention farms filing half-baked patent applications in an attempt to file first rather than file best.

Individual freedoms demand individual responsibilities. This is true with the “First To Invent” system. In practice the system has two basic requirements that the inventor must carefully document: 1. the invention’s date of conception, and 2. reducing the invention to practice. If both steps are properly recorded and “diligently” accomplished, then the inventor who was first to invent has priority rights to the invention, even if someone else was able to file first. Fortunately for the United States, the “First To Invent” system allows enough time to do the job right.

The basic requirements have three concepts critical to establishing “First To Invent” rights. First, an inventor must “carefully document” the date of conception by writing a description and providing a drawing (if applicable) that is witnessed. Second, the inventor must “reduce the invention to practice” by drafting a make and use engineering specification, and then file a patent application. And third, the inventor must work “diligently” to perform all of the required tasks without any lapse in time.

Small Entity Inventors often have some misconceptions in regards to the meanings of “Diligence” and “Reduction To Practice.” Discussion of these concepts within the context of patent rules unfortunately must be left for another time. Regardless, inventors are cautioned that a misconception could result in lost patent rights.

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