Can Someone Patent My Invention Before Me?

Yes — under certain circumstances. The U.S. operates on a first-to-file system, which means filing your patent application promptly is critical.

The short answer is yes, someone can potentially patent your invention before you — if they independently came up with the same invention and file a patent application before you do. This is one of the most important reasons to file a patent application as early as possible.

The First-to-File System

The United States operates under a first-to-file patent system. This means that when two inventors independently develop the same or very similar inventions, the patent rights generally go to whichever inventor files their patent application first — not to whoever invented it first.

This is a significant departure from the old first-to-invent system that the U.S. used prior to the America Invents Act of 2013. Under the current system, priority in the patent office is determined by filing date, not by the date of conception or reduction to practice.

The practical implication is clear: if you have an invention worth protecting, file a patent application — or at minimum a provisional patent application to establish a priority date — as soon as possible. Waiting gives a potential independent inventor the opportunity to file first and claim the rights you wanted.

What if Someone Files Based on Your Invention?

The first-to-file rule only applies to independent inventors. If someone files a patent application for an invention that they derived from you — meaning they learned about your invention from you and then filed a patent application claiming it as their own — that is a different situation entirely.

In that case, you can file a Derivation Proceeding with the USPTO to assert that the other party’s patent application was derived from your invention. A Derivation Proceeding is a formal proceeding before the Patent Trial and Appeal Board (PTAB) in which you can establish that the other applicant derived the claimed invention from you, and that you filed your application before them or that you are entitled to the benefit of an earlier filing date.

Winning a Derivation Proceeding allows you to assert your superior rights to the invention even if the other party filed their patent application first.

How to Protect Yourself

The best protection against someone patenting your invention before you is to act quickly:

• File a provisional patent application early — A provisional application establishes your priority date at a lower cost and gives you 12 months to file a full nonprovisional application. See my page on What is a Provisional Patent Application? for more detail.
• Be careful about disclosures — Be thoughtful about who you share your invention with before filing. If you must disclose your invention before filing, consider using a non-disclosure agreement (NDA).
• Act promptly — The longer you wait to file, the greater the risk that someone else independently develops and files on the same invention.

If you have an invention you want to protect, I can help you evaluate your options and get a patent application filed promptly. Contact me to discuss your invention.

Related Topics:

What is Prior Art?

What is a Priority Date, and What Does It Mean to “Maintain Pendency”?