USPTO To Implement New Patent Quality Process

The U.S. Department of Commerce’s U.S. Patent and Trademark Office (USPTO) announced today that it is creating a new proceeding designed to ensure the first person to file a patent application is actually the true inventor. Part of the Office’s implementation of the Leahy-Smith America Invents Act (AIA), the rule for derivation proceedings will take effect on March 16, 2013, eighteen months after the AIA’s enactment. The final rule will publish Tuesday, September 11th, in the Federal Register.

The new proceeding will ensure that a person will not be able to obtain a patent for an invention that he or she did not actually invent.  If a true inventor is not the first to file, the true inventor may challenge the first applicant’s right to a patent by demonstrating that the first application is claiming an invention derived from the true inventor.  The derivation proceeding addresses the shift of the U.S. patent system from a first-to-invent to a first-inventor-to-file system. The USPTO currently is seeking comment on its proposed rules for implementing first-inventor-to-file, which will also go into effect on March 16, 2013. Derivation proceedings will be conducted by the USPTO’s Patent Trial and Appeal Board.

“Our historic shift to a first-inventor-to-file system reduces legal costs, improves transparency, and allows us to harmonize our patent system with the rest of the world, all of which will help U.S. innovators and strengthen our economy,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos. “This derivation proceeding will ensure that under a first-inventor-to-file system, the inventor is always the one who obtains the patent. We’re pleased to release this final rule to the public months in advance of its implementation, to allow stakeholders greater time to prepare.”

The final rule is based on public comment the USPTO received after issuing a Notice of Proposed Rulemaking in February, 2012, as well as a series of public forums held across the country. In light of the comments, the Office has made appropriate modifications to the proposed rules to provide greater clarity and a more timely and efficient process.

For more information, visit: www.uspto.gov/aia_implementation/Derivation_Proceedings.pdf

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