C3 Patent and Intellectual Property Law

Jun112009 | Steve O'Donnell

Keeping records of your invention

Hopefully you'll never have to prove when you really invented the thing you're trying to patent, but if you do, you better hope you have good records to back you up.

The patent office assumes that the actual date of invention is the date the application was filed. Unless the inventor thought of the widget in the morning, worked through breakfast and lunch to get the invention ready for patenting and then able to get a patent application drafted and submitted by midnight, this isn't going to be the case. Many inventions take years to go from conception to the patent office.

For illustration, we'll say that Inventor A has an idea in January, has it ready for patenting in June and files the application in December. In the mean time, Inventor B has the same idea in February, has the invention ready for patenting in July, but files that application in in November. Who gets the patent?

What should happen is that Inventor A proves that he was the first to have the invention ready to go and so he gets the patent. But, if Inventor A didn't keep notes or kept sloppy notes he might be out of luck if Inventor B kept an organized notebook.

Those notes can also be needed if there is prior art that is published between the time of invention and the time the application is filed or if the invention goes on sale within the year long grace period allowed under 35 U.S.C. § 102(b).

Ideally, counsel will assist in designing and implementing a record keeping system, but that isn't realistic for many first time inventors. However, anyone can keep useful records with a notebook and a pen.