Continuous Diligence Not Required
Although the United States has been a first-inventor-to-file
patent system since March 16th 2013, the patents of the previous
first-to-invent system will linger for many years to come. For
those patents, the ability to "swear behind" prior art
will remain.
Under pre-AIA §102(g), when two persons invent the same
invention, for the latter inventor to be entitled to the patent,
she must demonstrate that she (1) was the first to conceive of the
invention and (2) was reasonably diligent in reducing it to
practice. The Federal Circuit recently ruled on what, exactly,
"reasonable diligence" entails at the Patent Trial &
Appeal Board (PTAB) in Arctic Cat Inc. v. GEP Power Products,
Inc. (here)
