US PATENTS Part V

WHEN SHOULD I FILE FOR A PATENT?

Every country in the world are known as “first to file countries.” This means that in the case of competing similar applications, the patent will be granted to whichever application is filed first. The date that you conceived of the invention is not relevant. This in turn means that it is extremely important to file your first patent application as quickly as possible.

For instance, if you or someone else have both filed for patent protection in Canada, the Patent Office will examine your applications and if the applications are found to be satisfactory, they will approve a patent to the individual who filed their application first, not to the individual who conceived of or invented the idea first. The date of invention is not important in Canada or most other countries in the world, except the US.

The US previously was a first to invent country but this changed several years ago. Now priority in terms of competing applications is awarded to whoever filed their application first. In other words, it makes no difference whether you invented the idea 5 or 10 years earlier.

All that matters now is whether you filed your application first. Someone cannot steal your invention, meaning to claim that they invented the idea because patent applications can only be filed on behalf of the original inventor or someone who acquires the rights from the inventor such as someone who purchases the rights to an invention.

However, be aware that the US Patent Office is not perfect or all knowing. They could approve an application filed on behalf of someone who stole your idea from you or first learned about the idea as a result of something you have done such as putting your invention on a website, selling the invention or going to a tradeshow. Keep in mind that the US Patent Office has no idea whether someone who claims to be the inventor of an idea did not actually steal or copy the idea from the real inventor. So the bottom line is you need to be the first one to file your application somewhere in the world. We always recommend filing in the US first for a number of reasons.

In the next issue we’ll discuss if you can use your invention before filing your patent application.