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I've heard it both ways. First-to-file either means: - A patent cannot be challenged on the basis of prior art once issued or: - If two people independently
by amalcon 16y ago
I've heard it both ways. First-to-file either means:
- A patent cannot be challenged on the basis of prior art once issued
or:
- If two people independently invent something, and both apply for the patent, the first one to get to the patent office gets the patent, rather than the first one to document the idea. That documentation would still be prior art, though.
People who think it's the latter tend to like first-to-file. People who think it's the former tend to not. I haven't actually heard from a patent lawyer about it, though.
- trun 16y agoI tend to think its the latter. If you look at the actual text of the bill... (a) Novelty; Prior Art- 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; ... it seems to indicate that prior art is still applicable when considering the validity of the patent. However, it's still not clear to me if prior art can be applied after the fact, or just during that 9 month period.
- danielparks 16y agoAh, I knew somebody else would RTFB ;) That seems to imply that if unpatented prior art by author A is discovered after author B applies for a patent, and the patent is invalidated, then author A cannot apply for patent. Interesting. Or, perhaps first-to-file only applies when the reduction to practice is the act of filing a patent, rather than the act of publishing. In other words, it only applies in the special case that two people apply for patents on work that neither of them have published. That would seem to imply that rather than applying for a patent, one should just publish. I started to poke through the bill and the patent code to figure this out, but it's beyond me. Maybe I need more than 2 hours of sleep.
- itsnotvalid 16y agoThat I guess, has to deal with people not filing patents until actual use, so people can't just sit on their inventions forever. Things that are patentable could be made not patentable simply by publishing it.
- metageek 16y agoI'm not happy about that "in a printed publication" bit, though.
- Natsu 16y agoYeah, did they intend it only to apply to things printed on paper or something?