Has the United States Adopted a First-to-File System Through America Invents Act?: A Comparative Law Analysis of Patent Priority Under First-Inventor-to-File
German Association for the Protection of Intellectual Property International, Forthcoming
Posted: 18 Jan 2012
Date Written: January 17, 2012
America Invents Act (“AIA”) includes many ambiguous terms, which will lead to uncertainty for U.S. courts and USPTO on how to interpret these terms and in implementing the new system. Terms that define non-prejudicial disclosures during the one year grace period under the first-inventor-to-file system are most controversial. If U.S. courts and UPSTO adopt the U.S. legal community’s prevailing view and interpret the terms to give a priority right based on a disclosure, AIA will bring only a marginal change to the current first-to-invent priority. It will need an administrative proceeding to contest the first-to-disclose priority which may be as complex and costly as the current interference proceeding.
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