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Inventor's Handbook

Chapter 7:
How Do I Prove the Idea Is Mine?

“Take my word for it.” In the world of patent law, this adage holds little weight. The first person to invent an idea—as opposed to the first person to file a patent—is the legal inventor. That's why in cases of dispute, it's imperative to be able to prove the date when you first envisioned the invention. Regardless of what anyone tells you, mailing yourself a registered letter does not constitute legal proof of invention.

To protect your invention from potential challenges, the first thing you need to do is put your idea in writing. Your documentation must be complete, accurate and concise. Create research and development notebooks, and don't leave anything to guesswork. The notebooks should describe the invention in words and pictures, fully explaining how it operates. Your entries also must be sufficient to enable anyone with ordinary skill in the technology to understand the material. Include observations, calculations, sketches, photos and formulas if applicable. Also, write down any unusual or unexpected results, ideas or conversations, and date and witness them. Include receipts of your purchases and records of visits to attorneys.

The pages of your notebook should be consecutively numbered and permanently bound. Entries should be in pen. Never remove pages and don't skip pages. All entries, as well as the conclusion, must be dated. Never backdate your records; this may create some question about your truthfulness or accuracy. If you need to make a correction, date and initial it. Never erase. If you need to correct a portion, draw a line through it, leaving the underlying material legible. Use only one notebook per invention.

The notebooks should be witnessed weekly by two people you trust, but are not relatives, and who understand the significance of what they see and read. If you make a change to an original entry that has been witnessed already, the original witness should sign and date the change. The change also should be noted on the page corresponding to the date of the change. In addition, your witnesses should sign a non-disclosure agreement—a statement that binds them to respect the confidentiality of your work and allows you to discuss your invention with some protection. Also, you may want to consider getting the pages notarized by a notary public.

When two or more parties claim the same invention, the patent office can declare what the federal patent law terms an “interference.” An interference is a proceeding to determine which party was the “first to invent” (see Chapter 2). The federal patent law terms the inventor who filed an application at an earlier date as the “senior party.” The senior party holds the legally presumptive advantage in an interference proceeding, irrespective of which party the patent office ultimately declares as the “first to invent.” Disputes over inventorship are extremely complex and inventors should consult a reputable patent attorney or agent.

 

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