What happens if someone else tries to patent my invention in the United States?

A patent is a set of exclusive rights granted to the inventor of an invention which meets certain requirements. To be granted a patent an inventor must file an application with the Untied States Patent and Trademark Office. The application must demonstrate how the invention is new, useful, and not obvious. The United States Patent and Trademark Office reviews patent applications to ensure that the patent application meets all the requirements of Untied States patent law. If the patent application is granted the inventor is granted the exclusive right to make, use, sell, import or distribute the invention within the United States.

Because technology is constantly evolving, it is possible for two different inventors to come up with the same invention. Patent law in the United States used to recognize the first person to invent an invention as the rightful patent owner. This was called the first to invent system. In the first to invent system, an inventor could stop a patent application filed by someone else, if the inventor could prove that they invented before the patent applicant. The method to dispute who invented first was called an interference proceeding.

The majority of other countries in the world grant a patent to the first inventor to file a patent application. This means that the first inventor to file a patent application, will be granted the patent. The philosophy behind a first to file system is that inventors should be rewarded for sharing their invention with the world as fast as possible, so the first inventor to disclose the invention to the public in a patent application is rewarded with the patent.

The America Invents Act was a major evolution in United States patent law. One of the changes in United States patent law which the America Invents Act implemented was to make the United States a first to file system. The change from first to invent to first to file was intended to harmonize United States patent law with the rest of the world. However, actually inventing an invention is still a requirement to be granted a patent. A patent will not be granted to someone who tries to patent an invention which does not belong to them.

If an inventor learns that someone is trying to patent their invention, the inventor can request a derivation proceeding. A derivation proceeding is a trial like proceeding conducted at the Patent Trial and Appeal Board to determine whether (i) an inventor named in an earlier application derived the claimed invention from an inventor named in the petitioner’s application, and (ii) the earlier application claiming such invention was filed without authorization. An applicant subject to the first-inventor-to-file provisions may file a petition to institute a derivation proceeding only within 1 year of the first publication of a claim to an invention that is the same or substantially the same as the earlier application’s claim to the invention. The petition must be supported by substantial evidence that the claimed invention was derived from an inventor named in the petitioner’s application. A derivation proceeding will not invalidate a patent application from a true independent inventor, only a patent application which was filed by someone that learned of the invention from the inventor.

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