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American Davids of Innovation, Start Your Engines: Strategies for Coping with First to File Under the America Invents Act


Written by Eric W. Guttag
Eric W. Guttag IP Law Office
Posted: July 7, 2011 @ 3:59 pm
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David vs. Goliath

Now that the dust is settling from the passage of H.R. 1249/S.23 (aka the oxymoronic America Invents Act) and those (like me) have stopped “moaning and groaning” about how the America Invents Act or AIA (I feel like washing my mouth out with Ivory soap every I say it) is an utter “sham” to be called reform, it’s time to deal with the reality.  The AIA will definitely affect how innovative American small businesses and individuals (the “Davids”) approach patenting their technology in the U.S., especially the change from “first to invent” to “first to file” which has now slanted the playing field in favor of large multinational corporations such as Microsoft (the “Goliaths”).  But there are still patenting strategies for the American Davids of Innovation to cope with the AIA (and still compete with the Goliaths) if the primary market to protect is the domestic market.

First, let’s define what I mean by the domestic market.  By domestic market, we’re talking about the United States. Not Asia.  Not Europe.  Not even NAFTA.  Just good ol’ America which, for many American Davids is all they care about, and can usually deal with.

Next let’s discuss what happens when you go from a “first to invent” regime as the U.S. currently has to the new “first to file” regime under AIA.  I’ve already discussed some the changes in the dynamics in an earlier article on the impact of the AIA on compliance with Bayh-Dole obligations.  See Bayh-Dole Compliance Obligations Meet America Invents Act.  But what I said in that earlier article bears repeating.  Under the current “first to file” regime, the critical “prior art date” (i.e., prior art caused by third parties, not the patent applicant) for U.S. patent filing purposes under a “first to invent” regime is the invention date.  Admittedly, the U.S. patent filing date is treated as the “constructive” invention date for prior art purposes.   Even so, the U.S. patent applicant can still potentially swear behind the prior art date by showing an earlier invention date.  In effect, the U.S. patent applicant who cares only about patent protection in the U.S. (i.e., the domestic market) has up to a one year “window” after the invention date before having to really worry about intervening prior art created by others after that invention date.

The AIA has completely changed that dynamic.  Under the “first to file” AIA regime, the effective prior art date is what prior art exists before the U.S. patent filing date.  In other words, the U.S. patent applicant no longer has the luxury of that potential up to one year “window” after the invention date.  Instead, the danger of intervening prior art by others steadily (and potentially exponentially) increases as time passes between the invention date and the U.S. patent filing date.  Put differently, U.S. patent applicants are now really in a “race to the U.S. Patent & Trademark Office (USPTO)” to minimize the ever increasing danger of intervening (and accumulating) prior art coming into play.  For the Goliaths, they’ve been existing in this situation for many years because the rest of the world (ROW) is “first to file.”  But for the American Davids, “first to file” under the AIA is going to be culture shock of the worst, and most expensive kind, with time pressure that these Davids aren’t prepared or trained to handle.

But rather than “moan and groan” some more about how unfair the AIA is, what can American Davids do to cope with the “first to file” regime under the AIA to make it palatable?  I’ve got some initial suggestions of strategies that the American Davids might be able to use to cope with the time pressure (and potential cost) that the “first to file” regime under the AIA has created.  I also won’t say that any of these strategies is necessarily “bullet proof.”  So here we go:

 1. For the first 18 months after the AIA is enacted, consider doing U.S. patent filings to take advantage of the soon to be extinct “first to invent” regime

One of the “transitional provisions” in the AIA is that the “first to file” regime won’t go into effect for 18 months after the date of enactment of the AIA.  In other words, there is a new 18 month “window” in existence to take advantage of the “first to invent” regime when it comes to what date (i.e., the invention date) prior art of others is judged by.  The American Davids will have to, of course, make sure their pocketbooks can handle what may be a “filing frenzy” to get the benefits of the “first to file” regime. (There is also likely to be a “filing splurge” with the USPTO to take advantage of this 18 month “window” which will put further strain and pain on the existing pending application “backlog.”)

2. Once we’re officially into the “first to file” regime under the AIA, U.S. patent filings must begin soon after the invention is created

Most significantly, getting that initial patent filing into the USPTO as quickly as is reasonable will assume greater importance as intervening (and accumulating) prior art starts growing like a sword of Damocles over the patent applicant American David. Waiting to make that first filing for up to a month after the invention is created/recognized to properly assess what prior art exists and to prepare a patent application that meets the “written description,” and “enablement” requirements of 35 U.S.C. § 112, first paragraph, may be all the American David can realistically count on.  But waiting several months, and especially a half a year, to “hem and haw” over whether the invention is worth the economic benefit to do a U.S. patent filing is almost certain to result in a fatal (or nearly fatal) intervening prior art event.

3. Consider doing a provisional for that initial U.S. patent filing.

Getting that first “date stake” in the ground early is critical in a “first to file” regime and provisionals can be cost effective for American Davids to cope with the “first to file” regime under the AIA.  Using provisionals in a U.S. patent filing strategy is also not a new idea.  See Using U.S. Provisional Applications In Your Patent Strategy.  One benefit is the lower government fee filing cost which is currently $110 for U.S. provisionals filed by American Davids (i.e., the American David can file at least 4 or 5 provisionals compared to the filing fee for one non-provisional).  You also don’t need an oath signed by the inventor(s) to file the provisional.  But more significantly, the filing of the provisional does not start the patent term clock ticking like a non-provisional (i.e., 20 years from the earliest non-provisional filing date).  Again, like the linked article cautions, a provisional must meet the “written description,” and “enablement” requirements of 35 U.S.C. § 112, first paragraph (like a non-provisional).  Meeting these “written description,” and “enablement” requirements (which also determine the scope of claims which might be allowed) is one “good” reason why taking up to a month to get that first provisional filing into the USPTO might be advisable.

4.  Use subsequent provisionals to build up scope and strength of the invention after the initial provisional/non-provisional filing.

As the linked article notes, provisionals are especially valuable for doing multiple filings to cover sequential improvements of a basic technology and to establish early filing dates for these improvements at relatively low cost.  American Davids can do the same to build upon the initial filing, including filling in any “holes” that were left by the need to make that initial filing in an expeditious manner, and to possibly change or correct the scope of the invention defined in that initial filing.  With these multiple provisional “date stakes” in the ground, the American David may get a little more breathing room to determine whether the intervening prior art makes it worthwhile to go “full bore” on patenting and to also decide when to “pull the trigger” on the final non-provisional filing that claims the priority benefit of these provisionals (still available under even the AIA) and thus start the patent term (and examination) clock ticking.

As stated earlier, none of these proposed strategies will necessarily address all of the time pressures and costs now imposed on the American Davids by the “first to file” regime of the AIA.  But without some sort of patenting strategy to address at least the domestic market and to take into account the challenges imposed by “first to file” regime of the AIA, the American David will likely get crushed by the Goliaths.  As some have stated in different contexts, the “time is now” for addressing what to do under the “first to file” regime of the AIA.  And for the American Davids of Innovation, it’s definitely time to “start your engines.”

*© 2011 Eric W. Guttag.


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22 comments
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  1. Eric, I agree with virtually all you have to say, but I do quibble with this sentence: ” But waiting several months, and especially a half a year, to “hem and haw” over whether the invention is worth the economic benefit to do a U.S. patent filing is almost certain to result in a fatal (or nearly fatal) intervening prior art event.”

    “almost certain” overstates the risks, in my view.

  2. I’m amazed at what people think the law is NOW for someone who is “waiting several months, and especially a half a year, to “hem and haw” over whether the invention is worth the economic benefit to do a U.S. patent filing.” Do they really think they can NOW [under the controlling 102(g) and its case law], do that without a prior completed actual reduction to practice and file a valid Rule 131 declaration or win an interference to avoid “a fatal (or nearly fatal) intervening prior art event?”

  3. Paul,

    I understand your point, but again, under “current law,” I’m addressing what date prior art is determined from in a “first to invent” regime, which is the invention date. Sure, other things could intervene, such as other folks filing their own patent application. But as I believe David Boundy has observed, what can be brutal on the American David is having make many early filings on a “wish and a prayer” that later turn out to be more “wish and prayer” than provable technology, and are thus a wasteful “throwaway” cost. The “first to file” regime of the AIA isn’t friendly at all to the American David who cares only about patent protection in the U.S. (domestic) market.

    AC,

    I hope i’m overstating the risks, but I’m not so sure I am. By switching the “prior date” from the invention date under a “first to file” regime to the filing date under a “first to file” regime, the American David now loses significant control over when third party activities, and especially when third party patents/patent applications/publications, become irrefutable “prior art.” Put differently, the American David will constantly live in fear under the “first to file” regime of the AIA that potentially fatal (and irrefutable) intervening third party “prior art” will come into play unless he files early to get that “date stake” in the ground. That fear (and risk) will only increase (potentially exponentially) as time passes after the invention creation date. Again, we’ll need to see how this plays out 18 months from now, but if I were an American David who wants to protect his position in the domestic market without going bankrupt, I would be sweating bullets when the “first to file” regime of the AIA comes into play.

    In one significant way (if I understand the AIA correctly), the “first to file” regime of the AIA may be even more draconian than absolute novelty in Europe in that “prior art” under the AIA can be cited not only to defeat novelty but can also be cited and combined to show obviousness, including U.S. applications that are earlier based on the U.S. filing date. My understanding is that, in Europe, novelty defeating earier EPO applications cannot be cited as “prior art” for “inventive step” purposes. If I’ve got that understanding wrong, please do correct me.

  4. Paul —

    The answer is yes. All businesses must make rational cost-benefit decisions, and it takes time to gather the information needed to make those decisions well. I have been shocked at the number of patent attorneys that have the ignorance to think that businesses don’t have to choose, and the arrogance to think that patents have first claim on the assets and time of a company.

    Your invocation of § 102(g) shows the problem — § 102(g) and interferences are so rare as to be irrelevant to decision-making. Remember that § 102(g) only applies in vanishingly narrow circumstances: two inventors invent the same invention nearly simultaneously, both file patent applications at about the same time, both are entitled to a patent in absence of the other (that is, both survive all § 102(a)-(f) and related § 103(a) issues), and the law has to decide that one of the two wins over the other.

    The full § 102(a), (b), and (e) grace period is what it’s about. The three sections, working together, give all inventors the time they need to gather information and make good decisions and file good patent applications.

    My gripe with the bill is the entire repeal of § 102(a) and (e), and scaling back § 102(b) to only activities of the inventor himself. Where today’s businesses can gather information, mature their inventions, and make rational decisions, under America Invents, they have to assume that there is no grace period at all. Under the new law, by the time you find out about anything, it’s already too late, and you’re barred. You don’t have time to think. You have to take on great costs before you have information to evaluate the profitability of those costs. That’s what makes this bill so bad for businesses.

  5. David,

    Exactly the point I was making to Paul and AC. I couldn’t have stated or explained the change in dynamics in going from the current “first to invent” regime to the “first to file” regime of the AIA better myself.

  6. Re: “under ‘current law,’ I’m addressing what date prior art is determined from in a “first to invent” regime, which is the invention date.”
    Not really, since the “invention date” is strongly legally presumed to be the filing date unless validly proven otherwise. Also, “invention date” has no effect on 102(b) prior art. As noted above “§102(g) only applies in vanishingly narrow circumstances,” and that includes Rule 131 declarations not just interferences.

  7. Paul,

    I’m not disputing that under the current “first to invent” regime, the filing date is the presumptive invention date (until proven otherwise). Also, regarding the current 102(b) for third party activities, you’re again talking about a one year “window” before the filing date that disappears under the “first to file” regime of the AIA.

    But you’re again missing my main point about what becomes the irrefutable prior art date and how that plays out in the current “first to invent” regime versus the “first to file” regime of the AIA. As David Boundy explained in great detail with regard to the effect of current 102(a) and 102(e), that irrefutable “prior art” date under the current “first to invent” regime is what occurs before the invention date. Having the irrefutable “prior date” move from the invention date (under the current regime) to the filing date (under the AIA regime) is brutal for individuals and small in terms of compressing the time and increasing the expense to make decisions for the reasons David has expressed.

  8. Paul,
    Although the filing date is the presumptive invention date until proven otherwise, the knowledge that one has the option to “prove otherwise” is a key risk-reduction game-changer for many startups and small businesses. And they know full well that it might cost them dearly to “prove otherwise,” but understand that in the very unlikely event that it should be required, the costs may well be worth it. Thus, there is a big difference between the two systems in ability to reduce inventor’s risks.

    In some cases, the relevant difference in risks between our current system and that proposed in HR 1249 is not actually that of the first-to-invent versus the first-to-file. It is rather the difference between the first-to-conceive and the first-to-reduce-to-practice. This is a crucial difference because under current U.S. law, evidence for conception of a claimed invention need not be fully enabling under all parts of Section 112. To establish conception, the documentary and corroborated material need only show sufficient evidence that the inventor possessed the claimed invention. It is only the patent application’s specification that must fully support the claims under all parts of Section 112.

    That conception is the key event under the American legal philosophy and not the reduction to practice was best expressed in the ability of inventors to file Caveats with the U.S. Patent Office in the 19th century. A Caviate applicant would secure a record priority date based on mere evidence of conception and was given two years to reduce the invention to practice and file an enabling and complete specification. Caveats established a prima facie priority date without requiring a fully enabling disclosure. It comported with the notion that inventors’ acts involve several steps spanning real time: conception, reduction to practice and filing an enabling application.

    Although Caveats were abolished long ago, this legal concept still exists today. But conception and reduction to practice are notions that do not exist in foreign patent law. The first relevant event under these foreign laws is the filing of an application, and it must be enabling with detailed specification (after reduction to practice). Owing to their extensive resources, big firms generally have substantial advantages over startups and small businesses in reaching this event first. Once conception takes place, they can more quickly complete extensive experimentation not only for supporting genus claims but for multiple specific species claims and provide detailed enabling disclosures. What has not been stated much during this debate is that this is often the real reason that large firms push for first-to-file: because this advantage in reduction to practice becomes irrelevant if the date of conception controls rather than the completion date of reduction to practice. It is by no coincidence that the strongest supporters of the first-to-file provision are big Pharma and R&D-intensive firms.

    The true comparison is therefore: first-to-conceive or first-to-reduce-to-practice. Current U.S. law provides a level playing field because it focuses on conception and largely removes from the equation the vast amount of resources that an applicant can bring to bear after conception. It provides all inventors robust incentives to pursue diligent development and disclosure of their inventions regardless of the limits of their resources. It encourages invention by all and has been proven to better promote the progress of useful arts.

  9. @David:

    I haven’t seen anyone yet opine on the actual language of HR 1249

    For example this part of the engrossed bill:

    1 SEC. 3. FIRST INVENTOR TO FILE.
    2 (a) DEFINITIONS.—Section 100 of title 35, United
    3 States Code, is amended—

    18 ‘‘(i)(1) The term ‘effective filing date’ for a claimed
    19 invention in …. [an] application for patent means—
    20 ‘‘(A) if subparagraph (B) does not apply, the
    21 actual filing date of … the application for
    22 the patent containing a claim to the invention; or
    23 ‘‘(B) the filing date of the earliest application
    24 for which the patent or application is entitled, as to
    25 such invention, to a right of priority under section
    1 119, 365(a), or 365(b) or to the benefit of an earlier
    2 filing date under section 120, 121, or 365(c).

    7 ‘‘(j) The term ‘claimed invention’ means the subject
    8 matter defined by a claim in a patent or an application
    9 for a patent.’’.

    What is your take on those words?

  10. (Gene: help help, i’m trapped inside your spam filter)

  11. Ron,

    Thanks for your further elaboration on this “first to invent” vs. “first to file” issue and its impact of Davids vs. Goliaths.

  12. Ron,

    Kudos – well said.

  13. step back:
    You are correct to point out weird language that we (small business representatives) had flagged in discussions during 2009 with congressional staff at no avail. We pointed out that the bill’s definition of ‘effective filing date’ of a given invention may no longer be the date of the original disclosure but rather the date it was first claimed in an application: Section 3 of HR 1249 states: “The term ‘effective filing date’ for a claimed invention in a patent or application for patent means — … The actual filing date of the patent or the application for the patent containing a claim to the invention.” This is even further tightened-up by the definition: “(j) The term ‘claimed invention’ means the subject matter defined by a claim in a patent or an application for a patent.”

    While subsection B may properly enable Continuations and Divisions to rely on original applications, this definition would still require that an original application on which one relies for priority contain all possible claims to the invention that one may ever want to add based on the original disclosure. We pointed out to congressional staffers that the definition should use the term “containing a disclosure of the claimed invention” but since they were only taking language amendments from the 21st Century Coalition when it came to these matters, we were ignored.

    The operative result may well be that which Prof. Lemley et al. and the bashers of “late claiming” practices intend: it would make the priority date based on the claim filing date – not the disclosure date. To avoid too much publicity and in explaining why a language change is not necessary in the statute, there will be those who will try to persuade you that the use of the words “containing a claim to the invention” is meant generally – that the totality of the application “lays claim” to an invention through its description and not necessarily through a recited patent claim at the end of the application. Yep, and I’m sure you and the courts will go for that…

    If this term is unclear, how about the following proposed statutory terms in Section 102:

    102(a)(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.”

    What is the meaning of “otherwise available to the public”? What type of prior art do we know that is not any of the following: “patented, described in a printed publication, or in public use, on sale,” but that is “otherwise available to the public”? I got several conflicting answers from Senate staffers and from Bob Armitage of the 21st Century Coalition who drafted this language. Bob’s remarkable comment was that this means prior art of descriptions that are broadcast on Radio, TV or the like. He believes that such material should be prior art even if there is no other evidence of published tangible expression for it. Do you recall any Congressional hearings or Committee report vetting this language? I certainly do not.

    102(a)(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), …. ”

    What is an application that is merely “deemed published” but not actually “published” under Section 122(b)? Deemed by who and on what grounds? Do you recall any Congressional hearings or Committee report vetting the meaning of this term? I certainly do not.

    The bill is laden with these subtle statutory minefields – deliberate latent new terms, never found before in patent law, specifically deviating from well-known terms for no other apparent reason but obfuscation. The drafters knew that clarity would have exposed their true goals and therefore garner broader objection. With ambiguity and non-statutory colloquy practice, they attempt to confuse and squelch substantive discussions, while hoping that their goals may be met when courts are called to interpret the statute while paying little attention to anything other than the written statute (think Justice Scalia).

    Where ample jurisprudence regarding established terms that could be used exists, the drafters deliberately chose to use other terms that may appear to be used merely for non-substantive drafting convenience but are in fact designed to throw away a century of case law. They may be hoping that the legal crapshoot would work their way knowing that courts will be required to presume that in these statutory changes, Congress “intends its amendment to have real and substantial effect.” Pierce County, Wash. v. Guillen, 537 U.S. 129, 145 (2003) (“We have said before that, when Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect”. … “That reading gives the amendment no real and substantial effect and, accordingly, cannot be the proper understanding of the statute.”)

    I apologize for my usual practice of submitting lengthy comments. My point is that we’re all in for a long ride into the vast uncertainty of the AIA. The article above doesn’t even touch the surface of what’s to come.

  14. Ron,

    No apologies necessary, what you provide is extremely valuable and insightful about the “problematic” language in this bill. Once again, you prove that the AIA is an utter sham, tainted, and corrupt. This legislation is so riddled with ambiguous terms that it will provide plenty of fodder for litigators at the expense of patent owners.

  15. Ron,

    Thank you for your valuable feedback.
    I kept rubbing my eyes, wondering if I’m misreading the weird language. It appears that the language is ambiguous and thus open to conflicting readings. At the end of the day,we may not know what rights an inventor gets (or not) for all his or her troubles until after the US Supreme Court rules on the new language.

  16. “At the end of the day,we may not know what rights an inventor gets (or not) for all his or her troubles until after the US Supreme Court rules on the new language.”

    SB,

    Amen to that. The AIA is another “multi-headed” hydra like Hatch-Waxman, full of ambiguity (aka, a litigator’s paradise).

  17. SB and EG, thanks for contributing to this discussion topic on this thread.
    SB, you say: “It appears that the language is ambiguous and thus open to conflicting readings.”
    That is what the drafters want you to acknowledge, so that your objection can be deflected or discredited. They have been successful.

    The fact remains that the courts would likely rule the priority date to be in accordance with the simple plain language in the statute – “the actual filing date of the patent or the application for the patent containing a claim to the invention.” There is no other way to read the statute: the filed claim – not the specification – determines the priority application. The results to applicants who thought they could rely on an original application’s disclosure date would be devastating. This matter is even bigger and more problematic than the PTO’s 2007 enjoined Continuations and Claims Rules. Remember how mobilized the patent user community was against those at that time? Where is the outrage now? Where is the outrage when this would not be by an agency rule that would be subject to judicial review and repeal, but rather directly from the ‘horse’s mouth’ – by the Congress?

    Some of us have flagged this problem to our Congressional representatives. But our voice never reached the critical mass required for attention on the Hill. It appears that you care about this issue but it also appears that you, like so many others, have been “pacified” by the ambiguity tactics of the drafters. Your response is typical of the patent community – noting the “sloppiness” of the language and just moving on because it may just be an ambiguous term that should be clarified. But this is exactly what the drafters intended. They intended to keep you or any of your representatives from having a certainty that there is a problem. This is their tactics: legislation by pacifying ambiguity. So far, they have been very successful.

    How many of you readers here explained this definition and its implications to your clients? Why not? Did you only tell them about the first-to-file? What will you tell your clients when they find out that their whole patenting strategy of relying on an original application’s disclosure is out the window? Will you tell them that “I was aware of some ambiguity that the statute could be read that way, but I was hoping that the courts may clarify it”? Why not warn your clients now, giving them a chance to raise it with their Senators and possibly avert the problem altogether? Why not err on the side that would protect your clients? Taking this proactive role would certainly increase your standing in client relations. Doing nothing would likely bring an after-the-fact client impression that you cannot be relied on to predict future legal problems.

    If the legislation passes with all these provisions, patent practitioners who have not warned their clients will be as much at fault as those pushing for it.

  18. Speaking of unintended consequences,

    has anyone seen this story yet: Patently unjust
    http://thehill.com/blogs/congress-blog/labor/170659-patently-unjust

    If the Bayh-Dole act can be manipulated toward unjust ends, I wonder what the ambiguous language of 1249 will bring? Can anyone spell Post Grant Review?

  19. Ron,

    Thank you for continuing the discussion.

    Actually, there is no one and only way of reading the ambiguous language.

    It could mean that you start with the issued patent that contains that claim and then you go back to any application “for the patent” even if the application does not contain the claim.

    Or it may mean, as your and my worst fears suggest, that the filed application had better have that exact and ultimately issued claim or else you don’t get an “effective filing date”.

    However, people are easily bedazzled by red herrings.
    So everyone is wasting their time arguing about the US Constitution instead of reading the actual language of the Bill and asking themselves, what the h*** does that mean?

  20. The provisional patent application really does seem to be an independent inventor’s new best friend. However, as you point out, it’s still critical for inventors to get the claims right even in provisionals, which in turn means that they should still seek the counsel of an attorney in preparing provisional patent applications. It will be interesting to see how innovators adapt to this new set of circumstances.
    http://www.GeneralPatent.com/blog/

  21. “Some of us have flagged this problem to our Congressional representatives. But our voice never reached the critical mass required for attention on the Hill. It appears that you care about this issue but it also appears that you, like so many others, have been “pacified” by the ambiguity tactics of the drafters.”

    Ron,

    I was never “pacified” by these tactics. The problem is that our Congress, besides being corrupted and tainted by the influences of the Goliaths, is simply unable (or unwilling) to “get into the weeds” to understand these drafting faux pas and what the dreadful consequences of them might or could be. About the only language these folks understand is when you tell them this legislation will “kill American jobs” or something similar. That’s all these folks listen to and care about (other than getting reelected). We simply don’t have now the “political intellect” of our Founding Fathers in Congress which is very sad.

  22. […] time to consider how to cope with (and even take advantage of) the AIA. See my prior article — American Davids of Innovation, Start Your Engines: Strategies for Coping with First to File Under th…. Take advantage of the AIA? Oh, yes. I’m referring to the new “grace period” provision in […]