By: Michael J Foycik Jr.
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.
The AIA And Its Impact On The Independent Inventor
By Michael Foycik ©2011
Used with permission.
The Leahy-Smith America Invents Act, AIA for short, proposes sweeping changes to the U.S. Patent legal system and to the U.S. Patent Office itself. The “first to file” provision is of the greatest importance to independent inventors. Most of the other changes are, more or less, administrative in nature, and will be covered in future articles. This article takes a brief look at the issues affecting the independent inventor, and especially the “first to file“ provision of the AIA.
Simply put, the “first to file” law would mean whoever is first to file a patent application will be deemed the true inventor. Sounds simple, but the law also provides for a possible “derivation proceeding” which would have a very limited scope.
What does this mean for the independent inventor? For one thing, it means even the best confidentiality agreements and NDAs (non-disclosure agreements) will have questionable value. It will be difficult, and very costly, to contest inventorship under the AIA. How costly? It depends, but even now the costs of contesting inventorship may be out of reach of most independent inventors; under the AIA, far greater hurdles will exist, and the cost will be higher.
Under the AIA, independent inventors would be well advised to first file a patent application (provisional or utility, either will suffice) before showing the invention to anyone.
This is already my recommendation to inventors: file a patent application first! Do this before you show it. Do not trust in agreements or contracts to protect your rights. Too costly, you say? Not true! A provisional patent application is very cost effective, gives substantial rights, and the government filing fee is relatively low. And, if you can’t afford the government filing fee, there are even some work-around solutions for that, which I may write about in a future article.
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