An exception to the first-to-file AIA provisions
Derivation proceedings at the U.S. Patent and Trademark Office (USPTO) provide an exception to the otherwise absolute first-to-file provisions of the America Invents Act (AIA). For patent applications having an effective filing date on or after March 16, 2013, the derivation proceeding is available to an inventor who believes that an earlier-to-file patent applicant derived the invention without authorization. Derivation of an invention is an often-raised issue in interferences in cases involving some element of collaboration. Who conceived the invention and when are important components of both priority of invention and derivation of an invention. Finnegan draws from extensive interference experience in advising clients regarding the opportunities afforded by derivation proceedings when a competitor derives an invention and is first to file.
DER2022-00004, PTAB, Judges Arbes, Lee, Kennedy
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