New worries for US patent filings

On top of all the ongoing worries about the US patent system being broken, the US Courts may be quite deliberately trying to make it harder for foreigners to get access to US patents, if a recent decision by the CAFC is anything to go by. The decision (available here, and commented on at the ever-informative Patently-O here) relates to US interference proceedings over which party would be allowed to claim the right to an earlier priority date for the same invention.

(Right: foreign applicants queue to get US patents, behind US applicants of course)

The upshot (of a rather convoluted set of facts, which will not be gone into here) was that one party (Medtronic) was able to win because their priority was to a US application, even though the earliest priority of the other party (Scimed) was earlier. The problem was that Scimed's earlier priority application was made in Europe and, due to the peculiar nature of the US system insisting that only the inventors can be entitled to file, this application, filed in the name of a predecessor company, couldn't count.

There is, of course, a lot more to it than that, and the IPKat advises his readers to carefully check the decision itself to be sure about any conclusions. However, what the IPKat is worried about is whether this means that other US applications and patents that rely on claiming priority from non-US filed priority filings (of which there will be very many) could potentially be in danger. And what about the requirements of Article 4 of the Paris Convention, of which the US is a member? If the earliest European filing was made validly, even without the 'consent' of the inventors, shouldn't this be allowed to count? Or could the IPKat be missing something?

Merpel says this just goes to show that the US is yet again saying that their system, broken and unfair though it is, is the only proper one and everyone else should just get in line.

More queue jumping here, here and here.