Tomorrow the “first-to-file” gets the patent instead of “first-to-invent”

The key premise of the Leahy-Smith America Invents Act that harmonizes the U.S. patent system with the rest of the world and authorizes USPTO to issue patents to the “first-to-file” a patent application (instead of determining who was the “first-to-invent”) goes into effect on Saturday, March 16, 2013.

Ahead of that key date patent applications are up. USPTO reports 12,670 patent applications were received the week ended March 2, the highest result in the past five months. Speculation as to why the rush to avoid the new law is all over the map, but there are two overriding factors.

  1. The new law adds more “prior art” to the examination process, theoretically making it more difficult to get a patent.  Some large companies have admitted trying to beat the March 16 deadline for this purpose;
  2. IP Value Wire concludes the main reason for the spike in applications is the number of inventors who have been testing their inventions for commercial viability and could afford to wait under the old law feel they need to file, even before they are ready, to preempt another from becoming first-to-file and stealing the rights to those inventions.