Many of us in the music business have—at one time or another—toyed with that elusive “invention” that we think rises to the level of a “patent.” I guess that is akin to something like a self-generated Grammy.
Anyway, there’s an important development that everyone needs to be aware or at least those of you who are actually involved in or with patents. Since 1790 patents were awarded in this country to the first to conceive an “invention.” However, with the enactment into law of the “America Invents Act of 2011” that changed (this law was signed by President Obama in 2011). Our two century system—traditionally based on a “first to invent” theory—has now been replaced with a “first to file” system.
In fact, effective March 16, 2013, our country implemented a new system that gives a priority to the first inventor who files their patent application with the Patent Office. For those applications filed before March 16, 2013, they will still be governed by the old rules or the “first to invent” rule. However, be aware that there are “transitional” rules at play here so you should do your due diligence regardless of when you filed in relation to March 16 to see what rules you are subject to. By “transitional” rules I mean those rules that more or less bridge the gap between the two systems of rules.
At first blush this appears to be a radical change (which it is) but is that necessarily a bad thing? No. That’s because the “first to file” system is used by every other country in the world so we are joining rank so to speak. However, on the other hand doesn’t this new system benefit larger companies (i.e., Apple and Google) that have the wherewithal to file applications on a daily basis? Perhaps.
I would also be remiss if I did not mention other interesting aspects of this law which took effect through various phases. They are complicated and lengthy and I would imagine that for some of us they would rank up there with reading a tube of toothpaste. However, I will add one interesting nugget. It now appears under this new law that long held trade secrets may now be patentable. I am sure that Coca-Cola will be pleased with that proposition.
For the rest of us, however, just be aware of a change in our laws and by all means for anyone looking to obtain patent protection, consult with a professional sooner rather than later. If you wait too long you might miss your spot in line.
– K bo