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Ahead of the Curve Auto Supplier Blog

November 19, 2012

Beware the Patent Ides of March

"Beware the Ides of March."                          -Soothsayer to Caesar                             Julius Caesar, Act I, Scene 2 I am typing this at an altitude of 35,000 feet on my way home from the annual meeting of patent attorneys.  This year's meeting focused on the impending conversion of the U.S patent system from first-to-invent to first-to-file.  Applications filed through March 15 -- the Ides of March -- will continue to be examined under the first-to-invent rules. However, applications filed after March 15 will be examined under the first-to-file rules The change to a first-to-file system is the biggest change in U.S. patent law since Thomas Jefferson reviewed and approved the first patent for a method of making potash.  First-to-file is exactly what it implies -- if two companies file applications on the same invention, the company that filed first will receive the patent.  To put it simply, the new system will be a footrace to the Patent Office. The definition of what is and is not prior art to a patent application also changes after March 15.  The new and expanded definition will create potentially larger minefields to negotiate during examination.  In some cases, the larger minefield will prove fatal.  These twin changes – first-to-file and expanded prior art – provide incentives in most situations to file patent applications by March 15.  (Actual results may vary.  Consult your patent counsel.)  Innovative companies need to keep the March 15 date firmly in mind.  Put it in red on your calendar.  Make it your screensaver.  Put it on your refrigerator. Essentially everyone within the patent system is predicting a significant increase in patent filings as March 15 approaches -- with that date itself being one of the busiest ever.  In fact, some people have questioned whether the Patent Office's online filing system will be able withstand the large number of anticipated filings. So, if you have not done so already, now is the time to plan with your patent counsel for filings to be made by the March 15 deadline.  Some sample questions include the following:
  • How will the impending patent changes impact my company?
  • For which inventions will my company want to file patent applications by March 15?
  • For which inventions might my company want to postpone filing patent applications until after March 15?
  • How can my company prioritize its inventions to select the "best" filing candidates?
  • Does my patent counsel have the capacity to complete desired patent filings by the March 15 deadline?
It is still good advice – at least in the patent world this year – to “beware the Ides of March.”  However, planning now will smooth the path up to and through that date.

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