The new federal patent law being closely watched by businesses and entreprenuers allows “first to file” patents instead of the American tradition of “first to invent” and has sent attorneys back to the drawing board on how to prepare their clients for more –and more global—competition.
Doug Kim, an attorney at McNair Law Firm, says “When the America Invents Act goes into full effect next March, the resulting paradigm shift will have a profound impact on U.S. intellectual property protections.
“Right now, if I invent something and file a patent later, and somebody files a patent in between the time I invented it and I filed my patent, I can prove I invented it on my invention date and get behind their patent and stop their patent from issuing. In March, if you get to the patent office, the first one to file wins,” Kim explains.
The new Leahy-Smith law is being closely watched by businesses and entrepreneurs as it changes the way America does patents.
“The Constitution says we protect the arts and sciences and we protect artists and inventors. Thomas Jefferson was the first patent commissioner, so this goes back to the founding of the country,” Kim says. “By protecting inventors, there is a lot of logic to protecting the invention date. Some people would argue that this country was founded because we wanted to be different from the rest of the world.”
But this new law brings the U.S. into line with the rest of the industrialized world, according to federal officials.
“The White House has been saying that this will help inventors get their products to market faster. I don’t necessarily agree with that; I think it will make inventors get their products to market faster–I’m not sure it will help them,” he says. “If I know that I have an invention date that I cannot rely on any more, I have to do a filing date. I need to get my product ready to be patented, which generally getting close to a prototype, close to a product I know I am going to be able to sell faster so that I can get a patent date faster.”
South Carolina has as many individual inventors filing patents as companies. Kim says this means they must know the new rules in order to compete.
The America Invents Act is still being put into place and goes into full and final effect next year. The top patent-filing companies in South Carolina include Milliken, Michelin,Clemson and USC.