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In the history, invention conflicts were on who has patented an invention sooner. This is the subject of stealing an invention. Consider one has published an invention in any kind of media, can this give him a right for claiming in the future?

For example, someone publishes an invention (whether announcement, idea, report, etc) in a media (newspaper, magazines, journals, etc) with no intention to file a patent. Then, someone else simply file a patent for that invention. Can the first person claim and file patent for his own discovery? Or the winner is always the first application received at the US Patent Office?

The article 35 U.S.C. 102 Conditions for patentability states that patentability needs novelty, and the inventor file a patent within one year. Does this mean that after one year, someone else can modify it and add some content to submit an application for his own.

In general, I am asking if other media (not official patent) can be used for claiming an invention (e.g. at court) or only who have patented are protected?

In other words, does USPTO wish/try to ideally/legally grant a patent to its real investor, or simply the first claimer is the legal owner (no matter who has actually invented).

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  • Could you clarify what you mean by "protection"? Are you asking if you could use other media to claim patent rights? Or to invalidate someone else's patent?
    – m3lvn
    Dec 15, 2012 at 17:18
  • @todorojo What's the difference? I can be person A (original inventor) or person B (invention thief). I want to know what is the base of legal judgement for a patent lawsuit? First application received at the USPTO or actual invention (to prove it with published materials in media). In other words, if someone has no intention to patent his invention, can someone else patent it legally? Again, in other words, does the USPTO care if one is the real invention, or it just recognizes the first one who brought the invention at the office (no matter who has invented)?
    – Googlebot
    Dec 15, 2012 at 17:37
  • Thanks for the clarification. Having a patent does not allow you to make or use the invention--it only allows you to exclude others from doing so. That's usually what we refer to as "patent protection". However, your question seemed to suggest, but was unclear, whether you wanted to get your own patent on the invention, or merely be free to make or use it.
    – m3lvn
    Dec 15, 2012 at 17:39
  • @todorojo Case 1: I had an invention but someone else filed the application before me, does this "patent protection" protects me from future claim, or I can claim that I was the actual inventions, as have evidences in published materials. Case 2: someone has invented something and reported (instead of filing a patent). If I patent the invention for myself, does this hinder the actual inventor from any claim (as I was the first who officially patented).
    – Googlebot
    Dec 15, 2012 at 17:43

2 Answers 2

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I'll go ahead and address 1) whether you can use other media that describe your invention like a patent, and 2) whether you can use other media to invalidate someone else's patent.

Note that the law has changed to first-to-file effective March 16, 2013. Most of the below is a pre-F2F answer. However it is still a good answer for applications filed before that date.

Other media as a patent

Other media cannot be used as a patent. You cannot sue anyone for patent infringement unless you have a patent, regardless of when you made the invention, how valuable it is, or how much money you spent on it. One must apply for a patent through the USPTO to get any protection under the patent statute. This is in contrast to copyright, where one need not file anything with the government in order to have rights in one's creation.

Other media to invalidate patent

First, 102(f) requires that one applying for a patent actually invented the invention. If the other guy really did just read your publication and went to the patent office with it, the patent should be invalid under 102(f). However, that might be hard (and costly) to prove.

Second, 102(a) says that if you published the material before he invented it, then his patent is invalid. This is also problematic, because it involves determining when he came up with the invention. However, if he didn't really invent it, he'll have a hard time coming up with proof that he invented it before the publication came out.

Third, if your publication came over a year before he filed for a patent, it's invalid. No need to determine when it was purportedly invented. This is the easiest way to invalidate a patent since it requires little investigation for evidence (you'd only need to show evidence that the publication was published when you said it was).

For applications after March 15th, 2013

Under the old patent law, if you and someone else invented the same invention in the same time frame, the first to invent would receive the patent. However, under the new law, which took effect on March 16, 2013, if someone else legitimately invented the same invention after you invented it, but before you published anything about it or filed for a patent, then he would receive the patent.

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  • Re "This is the easiest way to invalidate a patent"; But no one spend their days monitoring patent applications. What if a patent application got through? Would it still then be able to invalidated at a future date after it has already been granted?
    – Pacerier
    Sep 19, 2016 at 18:27
  • "But no one spend their days monitoring patent applications." - actually, yes, many companies do because getting a patent invalidated is way easier (cheaper, too) before the grant.
    – user18033
    Dec 20, 2016 at 16:37
  • I may be missing something here but I think the real question he is asking is can someone who has not actually made the invention but become aware of the invention go ahead and apply for a patent for the invention. In other words, can someone who is not the inventor and has not obtained any rights from the inventor in regard to the invention apply for the patent?
    – Deon P Hugo
    Sep 12, 2017 at 21:41
  • The patent for the Laser was litigated for over 20 years. It didn't go to the person who first came up with the idea theoretically, or the person who first made a working laser. It got messy. The theory was in the air, and it was up for grabs.
    – Bob U 5678
    Jan 16, 2018 at 2:26
  • @DeonPHugo no, you must be the inventor in order to apply for the patent. But the PTO won't make you offer proof that you invented it, so an unscrupulous person could theoretically get a patent on something they did not invent. The patent, however, could be challenged on those grounds in the future.
    – m3lvn
    Jan 26, 2018 at 21:59
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In theory no, in practice yes. Here is example of crowdfunding backer actually getting (!) USPTO patent on the project he backed:

https://patentpandas.org/stories/crowdfunding-backer-patented-my-project

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