Time Is Not On Your Side
Mick Jagger famously sang “Time is on my side.” But then, Mr. Jagger is not an inventor. Time has always worked against the inventor in the patent process, but things are getting more challenging.
Current U.S. patent law favors the first inventor, even if a later inventor files a patent application first. Last year’s patent reforms will change that when they take effect. Historically, a first inventor could take some comfort in delaying a patent application while refining an invention—even if a later inventor filed a similar application, the patent would go to the first inventor, provided that the first inventor remained diligent and eventually filed a patent application.
Not so under the 2011 Leahy-Smith America Invents Act. For patent applications filed after March 16, 2013, U.S. patent law will—with limited exceptions—award the patent to the first inventor to file an application, irrespective of whether that inventor was the first to conceive the invention.
In addition, the impending changes significantly curtail the grace period available to an inventor who discloses an invention to the public—for example by a public use, or a sale, or even by publishing an academic paper—prior to filing a patent application. Existing U.S. patent law provides the inventor a one-year grace period in which to file an application, before such a previous public disclosure becomes a bar to patentability.
Not so under the America Invents Act. With limited exception, such disclosure will bar a patent on an application filed after March 16, 2013.
In short, under the 2011 patent law revisions, inventors will be in a “race to the patent office,” so time spent honing your idea may be fatal to your patent and toxic to your business interests.
Overcome Those Barriers!
Recognizing an invention is not difficult when you know what to look for. Unfortunately, many people are not attuned to recognizing their inventions. Therefore, one impediment to recognizing innovation is simply lack of experience.
In addition, the distributed nature of many construction projects means that several, unrelated firms may each address portions of the work, under the umbrella of a general contractor or within the organization of a joint venture. While a GC or construction manager or project manager may have information about the project and its progress, there may be no one with a big-picture appreciation of the problems overcome in the work. As such, a significant impediment to recognizing innovation may be lack of visibility.
Even when people suspect that they have an invention, they often lack confidence to disclose it. Young innovators may think that their ideas are not worthwhile, or “if it were a good idea, the more experienced people would already have thought of it.” Paradoxically, the more experienced people tend to believe that many new ideas are the same as things they saw long ago.
Even worse, innovators too frequently think that the requirements for patentability are much higher than they are. Then, even when an innovator recognizes an invention, other job pressures may leave little time to pursue it. With a little guidance and investment of time, these barriers can be overcome, and when that happens the floodgates of invention disclosure tend to open.