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The New America Invents Act - First Inventor to File

The New America Invents Act

On September 16, 2011 President Barack Obama signed into law the Leahy-Smith America Invents Act (AIA). This new act makes several changes to procedures for a patent applicant as well as changes in the application process. The changes began to be implemented on September 16, 2011 with the final rules going into effect on March 19, 2013.

First Inventor to File

One of the biggest changes is the first to file requirement. The United States Patent and Trademark Office officially announced the effective date for the First-Inventor-to-File provision of the AIA is March 16, 2013. Prior to March 16, 2013 an inventor needed to show the date they actually had the concept of their invention. This not only proved to be challenging, but also involved expensive litigation. Basically, for the United States inventor, unlike most of the World, a patent was granted to the first person to invent an invention. Beginning March 16, 2013 the United States joins the rest of the world by switching the system from the "first-to-invent" to the "first-inventor-to-file" provision. The act changes 35 U.S.C. § 102 of the patent law from:

A person shall be entitled to a patent unless—

(a) the invention was known or used … before the invention thereof by the applicant for patent


A person shall be entitled to a patent unless—

(a) the claimed invention was patented … before the effective filing date of the claimed invention.

What this means is to determine patentability when an inventor files, the Examiner at the Patent Office will look at the filling date of the patent when determining if another similar patent was also filed. Another is the challenge of an issued patent. Before the AIA, inventors had to show when they actually had the concept of their invention. With the new AIA, if an invention shows up on the market that is the same as another invention, the first thing an inventor will need to look at is when was the application first filed? If it was filed prior to March 16, 2013, then the inventor will have to look at when the invention date of the other invention was (prior art). But if it is after March 16, 2013, then the answer is simple, who effectively filed first?

If you have a idea and want to see if you can patent it, the best place to start is by contacting a patent attorney to discuss the patent process. If you have any questions about this article please send Patent Attorney George Leone an email.

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