In 2013, the US changed their patent entitlement system from a “first to invent” process to a “first inventor to file” process. This harmonised the US with the rest of the world – if two competitors independently devised similar inventions, post-2013 whoever filed a patent application first gained the monopoly on that invention. Prior to 2013, keeping rigorous notebooks detailing exactly when you devised the invention was critical to demonstrate that you invented it first; if your competitor filed their application first, you could use that evidence to wrest control of the monopoly.
So, with the world harmonised to the “first inventor to file” process, do inventors still need to keep rigorous notebooks? What if you’re not interested in the US, and instead have eyes only for Europe or the UK?
Patents are temporary monopolies provided by countries in exchange for disclosure of the invention. A patent application must sufficiently teach at least one way of recreating the invention. Keeping thorough notes ensures that the patent application records this process accurately and avoids downstream enablement issues.
- Prior Use Rights
In Europe and the UK, if a third party independently devises a similar invention and beats you to filing an application, all isn’t lost! If you can prove that on the filing day you were either already secretly working the invention or made a serious effort to start to do so, you’re entitled to keep working that invention!
- Employee/Employer Entitlement
Typically, if an employee makes an invention as part of their normal or assigned duties, the employer is entitled to that invention by right of employment. Employers should therefore insist that their employees keep rigorous notes, should the employee try to take the invention for themselves. Alternatively, employees who moonlight as inventors should also keep a good notebook, to prevent their employer laying claim on their invention.
- Theft of the Invention
In rare cases, third parties learn of inventions made by others and file a patent application claiming the invention as their own. The true first owner of an invention is the one who devised it, therefore good invention records can be vital in restoring the balance and regaining control of your patent monopoly.
For the above reasons, accurate notes should be rigorously and religiously kept, and importantly they should be regularly dated and signed by a witness or even notarised. Please note, some people recommend that instead of getting your notes witnessed, you should post a copy of your notes to yourself. It’s doubtful that this would hold nearly as much weight in a court, compared with contemporaneous signing and witnessing by a reliable party.