Timing in the IP World & a Country’s Intellectual Capital

In the United States, the first to invent is the first in right. However, this rule has been modified, so you should talk to our registered patent attorney, Michael L. Greenberg, if you desire more information. Outside of the United States, it is the first to file who is first in right.

Oftentimes, an invention which might do well in the United States also might do well outside of the US.

It would behoove the inventor to file a patent application as soon as it is reasonably possible. An application, even a provisional, should not be filed before the inventor has some idea how his invention may be created — as a provisional application which does not state such will most likely not preserve the inventor’s patent rights and will not give the inventor the necessary priority date for future utility or foreign applications.

An inventor who files a patent application too soon might be defined as an inventor who files without enough “know how” to preserve his patent rights.

An inventor who files too late might be defined as one whose competitors manage to file before him (in the US or in foreign countries before said inventor’s rights have been preserved) before obtaining priority.

Either case allows control of the patent’s technology to be taken out of the hands of an inventor, as well as the incumbent revenue which would have therefore entered the US economy.

It should be noted that this situation can also occur, although with different rules, where trademarks and copyrights are concerned.

Such intellectual property may be seen as part of a country’s intellectual capital. The rest of such capital may be found in the inventors and technologists themselves. Allowing the control over technology to leave the country may also be seen as a brain drain on the country. Skilled technicians will be needed outside of the country to service the lost technology, as compared to if the technology had been properly patented here in the US.

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