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Are The U.S. Patent Priority Rules Really Necessary?, Colleen Chien, Mark Lemley
Are The U.S. Patent Priority Rules Really Necessary?, Colleen Chien, Mark Lemley
Faculty Publications
In this Article, we study U.S. Patent and Trademark Office (“PTO”) interference proceedings and court cases in which the parties dispute who is first to invent. We find that the first person to file is usually, but by no means always, also the first to invent. In over 40% of the cases, the first to invent is last to file. We also find that the long-standing rule that discriminated against foreign inventors by requiring proof of inventive activity in the U.S. had surprisingly little effect on outcomes; that a large number of priority disputes involve near-simultaneous invention; and that the …