Today, Hal Wegner blew the trumpet loud and clear. Beginning March 16, 2013, the new one-year grace period, which is currently unconditional, may only give narrow protection with respect to pre-filing disclosures based on a review of 35 USC 102, the recent PTO examination and final rules, certain statements made by principal draftsman Robert Armitage and Joe Matal, and Congressional legislative history. For example, the new one-year grace period may not protect against a third party's disclosure or publication prior to the filing date unless the third party disclosure is identical to the inventor's disclosure.
You may want to sign up for Hal Wegner's free email service for the details. But in a nutshell he advises: if anyone plans to file a U.S. patent application on or after March 16, 2013, they should file the application before disclosure of the invention. If anyone discloses the invention before filing a application, one should file the application as soon as possible to reduce the risk the grace period will be treated as not shielding a non-identical third party disclosure before the filing date. Because the scope of the grace period is uncertain after considerable commentary, this appears to be the safer approach to protect U.S. patent rights until the Federal Circuit gives further guidance.
Copyright © 2013 Robert Moll. All rights reserved.