The United States Patent and Trademark Office (“USPTO”) experienced a historic moment yesterday – its 10 millionth patent was issued to Raytheon Co, a major U.S. defense contractor. While it is clear from this landmark moment that there has been an explosion of activity regarding patent application filings in the United States, what does that really mean to you as a business leader? In brief, timing is everything and you should be diligent about protecting your company’s innovations now more than ever before.
Now operating under the provisions of the 2012 America Invents Act, the United States is a “first to file” country and whoever wins the race to the USPTO will be granted priority. You want to win this race. In the past 6 years alone, more than 2 million U.S. patents have been issued. This reflects an exponential pace compared to prior years where increments of 2 million patents occurred far less frequently—often fewer than every 24 years.
Sensing that time is working against you? It is, but keep in mind that you do not need to have the patentable innovation fully developed in order to pursue patent protection. This opportunity exists because, by statute, a constructive reduction to practice occurs when a patent application on the claimed invention is filed. The filing of a patent application serves as conception and constructive reduction to practice of the subject matter described in the application. This means that the inventor need not provide evidence of either conception or actual reduction to practice when relying on the content of the patent application.
On a more global basis, however, the United States is actually slipping in its worldwide growth rate relative to other countries. This means that other countries are experiencing the same increase in patent application activity. As an innovator, this further diminishes your ability to claim priority abroad, even if you have priority in the United States. If your product or process will be used outside the United States, you will want to win this race as well.
The diligent pursuit of filing patent applications early impacts large companies with established product lines as well as smaller companies and startups whose businesses hang on the single thread of one patentable innovation. Irrespective of your size, if a patentable innovation is a valuable asset to your business, you will want to be diligent about filing in the United States and abroad. If you don’t, your competitor likely will be.
For guidance on filing patents or other intellectual property protection needs, please contact your Davis|Kuelthau, s.c. attorney, the author noted above, or our Intellectual Property practice chair linked here.