Patent and Invention Help Forum

Priority date gamble.

Nickolas Aroney

Priority date gamble.
« on: June 12, 2017, 02:01:48 AM »
Hello good people.
Scenario:
I have just lodged a provisional application to claim a priority date.
Let's say the date of lodgement is 10th June 2017.
Unbeknownst to me another inventor had applied for the same invention
on 9th June 2017
In 11 months time I apply for a standard patent and get a nasty surprise
that will have cost me thousands for nothing.

Is this simply a gamble that all inventors must take ?

Brad

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Re: Priority date gamble.
« Reply #1 on: June 12, 2017, 10:52:49 AM »
Yes.  This is part of the risk/gamble.   Usually however you will find the two inventions are not 100% the same and there may be one or two little things you are doing differently from the other patent application so you may still be able to get your own patent approved but the focus would have to be on those differences.

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Disclaimer: The information on this site is not legal advice and is not a substitute for an attorney or a law firm.  You should seek legal counsel for legal questions.

Pooja Kapadia

Re: Priority date gamble.
« Reply #2 on: June 14, 2017, 07:20:08 AM »
No this would not be a gamble as the application which was submitted on June 9 would not be treated as a prior art as a prior art would be only something that is published prior to the priority date of the application. Hence, while the application was filed one day prior to yours, since it was not published before your priority date, it cannot be treated as a prior art hence this would not be a gamble.

Trust this helps.

Brad

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Re: Priority date gamble.
« Reply #3 on: June 14, 2017, 01:50:04 PM »
No this would not be a gamble as the application which was submitted on June 9 would not be treated as a prior art as a prior art would be only something that is published prior to the priority date of the application. Hence, while the application was filed one day prior to yours, since it was not published before your priority date, it cannot be treated as a prior art hence this would not be a gamble.

Trust this helps.

Sorry this is not correct.  See 102 (A) (2) which says:

(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
My free patent template: http://patentfile.org/free-provisional-patent-template/

Hire Me:  http://patentfile.org/packages/

Disclaimer: The information on this site is not legal advice and is not a substitute for an attorney or a law firm.  You should seek legal counsel for legal questions.