Patents

The U.S. patent system awards patents to the first to invent, not the first to file an application. Therefore, proving an earlier invention could be critical to maintaining patents rights for an invention, especially if the U.S. Patent and Trademark Office receives more than one inventor’s patent application detailing similar ideas at the same time. When this happens, the office declares that the two inventions are in “interference,” which means the patent owners will be asked to prove that they have the earliest filing date in order to receive patent rights.

Several methods can establish the date of invention before a patent application is filed. A provisional patent application, proper record-keeping techniques and disclosure to an attorney each have proven sufficient to maintain a patent owner’s invention date.

Proper Record-Keeping Techniques

The best way to ensure positive proof of a conception date is for the inventor to prepare a notarized invention disclosure form. These generally are prepared by attorneys but also can be found on the web. The form must present a detailed description of the invention, the conception date and the inventor’s information and generally identify all known processes, methods and apparatuses that may have an effect on the patentability of the invention. The form usually is signed and dated by the inventor and one or two non-inventor witnesses.

Bound notebooks are a recognized way to store notes, sketches and ideas related to the inventive process. Each page of the notebook should be signed and dated by the inventor and a witness on a daily basis. Each day’s notes should begin on a new piece of paper, and any open spaces should be crossed out so that information cannot be added later. Loose papers, such as test results and diagrams, should be affixed to a page of the notebook, preferably using a stapler.

Records should be maintained in a manner that facilitates proving not only the conception date but also diligence between conception and reduction to practice. For this reason, time records should be maintained. The time records should be placed in bound notebooks as previously described.

Postmarks

Mailing a copy of the invention details to yourself will have little to no effect in proving the date of invention. Credibility and abandonment questions significantly affect the effect of this technique. It is nearly impossible to invent, record and mail the details of your invention on the same day and is even more difficult to convince a federal court or the patent office that those things happened on the same day. Problems also exist with proving that the envelope was not tampered with and that the actual details of the invention were inside the envelope bearing the postmark.

In addition to the issue of credibility, failure to file a patent application within a reasonable amount of time may bar your patent rights in the invention. Patent laws preclude patenting an invention whose details have been suppressed, concealed or abandoned. Storing your ideas in a sealed envelope could be interpreted as suppression or concealment. Further, courts have found that failing to file a patent application on an invention for more than two years is an abandonment of that invention.