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USPTO Issues Inventor Verification Rules Under First-to-File

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The U.S. Patent and Trademark Office issued new procedures today to ensure the first person to file a patent application is actually the true inventor. The new rules are part of USPTO’s implementation of the Leahy-Smith America Invents Act (AIA), and are scheduled to take effect on 16 March 2013.

The AIA shifts the U.S. patent system from a first-to-invent to a first-inventor-to-file system. The new rules cover derivation proceedings that USPTO says are designed to ensure that a person will not be able to obtain a patent for an invention that he or she did not actually invent. The new rules, says the agency, are based on comments collected on proposed rules since February, as well as public forums.

In cases where the actual inventor is not the first to file a patent, the rules give the true inventor the opportunity to challenge the first applicant’s right to that patent by demonstrating that the first application is derived from an invention created by the true inventor.

Derivation proceedings will be held before the Patent Trial and Appeal Board. The rules include requirements and standards for a petition to start a derivation proceeding, showing sufficient grounds to institute a derivation proceeding, the conduct of a derivation proceeding, and procedures for arbitration and settlement.

USPTO published in July its proposed rules for the overall shift to a first-inventor-to-file system. Comments on those proposed rules are due by 5 October.

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