(1) Intellectual property asset management under the new "first-to-file" rule. On March 16, 2013, rights will no longer go to the "first-to-invent" (as previous), but rather to the "first-to-file" for patent protection. Importantly, prior art may still prevent a patent from issuing to the person who was "first-to-file." New best practices for businesses include:
- deciding early whether patent protection is part of your business model;
- if patent protection is part of the business model, filing early and filing often (preferably using a provisional application to manage costs until after more market information is received); and
- if patent protection is not part of the business model, publishing the product or technology early and often to clearly establish that it is prior art, therby barring others from obtaining rights.
- monitoring competitor's patent applications, particularly at end-stages of the process;
- considering the submission of prior art and comments to prevent patent issuance; and
- conducting thorough prior art searches prior to patent application in order to anticipate and address potential challenges by third parties.