In my search for general information on patenting, I found a recommendation to keep a log and dates when an invention was conceived, but I cannot find why this is beneficial. If this log (and such) really carries weight, when is this true? Perhaps it is in the case to settle a dispute in an interference case - when two applications claim similar subject matter?
From a litigation perspective, it’s helpful to fend off any attempts to invalidate the patent using prior art (previous publications, generally, including other patents, that disclose the claimed subject matter of your patent), basically by pushing your invention date farther back.
Without evidence of conception (along with reduction to practice and diligence between the two), your invention date may be the date you filed the patent application. That could result in invalidation by prior art that predates your application date, but actually post-dates your actual date of invention.
Also, in the United States, the first party to invent (conceive) gets the patent in cases of interference, or can win against allegations by another party that one is infringing on their patent. One of the best ways to demonstrate this is to keep a dated logbook. In Europe and most other areas, this is not quite as important, because the first to file, not the first to invent has precedence.
How are you gonna prove it was when it said it was? It’s pretty easy to fake a timestamp.
What would you do, mail the log to yourself, return receipt / certified?
Parents: Why keep a dog?
Well, it keeps the kids out of your hair…sometimes…
If you are in a proper lab doing research, you have a lab notebook with dates for every day you were there. You would have to fake all of those dates, because you wouldn’t just keep that one note on a separate piece of paper for some strange reason. It would have to be in your notebook, in order and in a logical sequence. It has to be consistent with all the other research that was going on at the time. Even supposing you were able to rewrite your notebook with the new time stamp in a logical manner, you would be surprised what forensic scientists will be able to detect, and for the millions of dollars at stake for a good patent, you’d better believe they will pull out all the stops if fraud is suspected.
Also, the era of the written notebook may soon come to an end. There are already plenty of notebook software utilities, and faking those is near impossible.
WarmNPrickly,
how can faking records in notes taking software be impossible? Does this software store the data on a remote server controlled by people dedicated to preventing such fraud? If not, who is to stop you from hacking it to make it create any set of electronic records you want?
That was a bit of a guess. IME hacking is fairly easy to detect if you design the program right. Remember, just as with the written notebook, you will have to forge years of notes and all of it has to match up. It has to match up with the notes on your coworkers notebooks as well. Now this is still a pretty new development, so I have no idea if these programs are designed securely yet. Computer forensics is a pretty advanced field, though and I don’t think even the researchers that consider themselves proficient are likely to be able to cover their all of their tracks. I suspect years of records suddenly written and edited all at once will leave some trail.
I’m not a computer scientist though, so I could be wrong.
If you’re conducting research or responsible for someone else’s research, it would be worthwhile to consult with a patent attorney for an hour or so for advice about the best procedures to adopt for keeping your notebooks or other materials documenting your inventive process. For example, some companies used to adopt standard procedures for witnessing of signed and dated lab notebooks for patent purposes. It would be a good idea to get advice about current law on this issue. Also, the attorney will be able to advise you about other practices that are important at this stage of research, e.g., laws regarding giving presentations about your research. Patent law is complex and unforgiving. My information is outdated, but it used to be the case that certain actions trigger “bar dates,” after which a patent cannot be filed, and for which there is no appeal.
It is pretty common to keep lab notebooks and to have each page signed and dated, and also signed and dated by a separate witness who is not involved in the work and has no strong motivation to cheat in this particular work. Some lab notebooks come preprinted with the spaces for these.
Each page, or each page that has something that might qualify as an invention? That’s the way I learned to do it.
I’ll just add the obvious - you don’t use pencil to write in your lab notebook.
In most places files get backed up on a regular basis, and the state of the notes in the backup file would be excellent evidence. I suspect there would also be an email trace.
However, do people really use on-line notes as a substitute for an old-fashioned lab notebook? When I had one, I think it was acceptable to print results and tape them into the book. (But I just wrote in mine.)
It’s safer to have a regular procedure rather than trying to guess what is a patentable invention or what is relevant evidence of conception. In the US, if the patent turns out to be important enough to litigate, a court (or the USPTO in case of an interference) will determine what the patent claims cover (i.e., what the invention(s) are).
I don’t think it is standard yet, but there is certainly software out there capable of doing it, and I expect that businesses will head this way. It is definitely one of the possible applications of tablet computers. Given that it can be connected to a server and updated quickly, I expect that businesses will head this way. Notes will be automatically dated, multiple copies can be delivered to the relevant parties, constantly needed data and calculations such as molecular weight, equivalents and percent yield can be calculated on the fly. The advantages of going to an electronic notebook system will be enormous.
They just need to make them lab proof. I think they would need to work with a stylus as well, since gloved hands won’t be able to draw structures.
Like Sidney said. Moreover, if you can show your shop was working steadily on it and had a reasonably unbroken effort on it, then the date you started that work counts. Since multiple people may be involved, including people that aren’t really being inventive (such as people doing routine work the inventor has to wait for), it is not easy to pick and choose what you’ll wish was recorded.