The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it.
But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled?
Maybe the idea is simply to shift the burden of determining the earliest invention date from the PTO before the patent is filed to the courts after the fact?
>The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it.
No. This would be fraud(because the "inventor" that filed didn't actually invent the thing) or could be theft of trade secrets(if an NDA is involved). Both of which are covered under US law.
>But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled?
If there is clear prior art before either were filed, then the patent would be nullfiied in either a First to File or First to Invent scenario.
I think that you're confusing prior art and what first to file/invent means.
First to File and First to Invent means that if two people file for an identical patent, the patent is granted based on either the filing date or the invention date. The only time that First to File applies is when two independent inventors file for the same patent in the same timeframe. Ovbiously, one cannot try to patent an idea after the patent has been accepted, even if they did invent first.
Prior art applies to all patents, based on the date of the filing of the patents. If I try to patent something that someone else is selling, like a mousetrap design, then it should get thrown out, no matter when I actually invented it, because it's already in production by someone else.
But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled?
Maybe the idea is simply to shift the burden of determining the earliest invention date from the PTO before the patent is filed to the courts after the fact?