This is the first entry in a series of entries analyzing the impact the proposed Patent Reform Act of 2010:
First-To-File:
Perhaps the most major change that the proposed patent reform legislation contains is the change away from a first-to-invent system and in the direction of a first-to-file system. Below is an excerpt from the proposed changes to 35 U.S.C. § 102:
''§ 102. Conditions for patentability; novelty
''(a) NOVELTY; PRIOR ART.--A person shall be entitled to a patent unless--
''(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
''(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention."
Essentially, the new 35 U.S.C. § 102 would use the "effective filing date" as the date which the prior art is balanced against. Effective filing date is only defined in the proposed changes to 35 U.S.C. § 100 by either the filing date of the application or by a claim of priority:
''(i)(1) The term 'effective filing date' of a claimed
invention in a patent or application for patent means--
''(A) if subparagraph (B) does not apply, the
actual filing date of the patent or the application for
the patent containing a claim to the invention; or
''(B) the filing date of the earliest application
for which the patent or application is entitled, as to
such invention, to a right of priority under section
119, 365(a), or 365(b) or to the benefit of an earlier
filing date under section 120, 121, or 365(c).
Disclosures made 1 year or less from the effective filing date will be an exception that will not count as prior art, but only if the inventor or joint-inventor was the first to disclose.
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