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