Of the many practical implications of the United States’ shift to a first-to-file system, perhaps the most important is that control of priority and key prior art dates has shifted from the first inventor to the person who is first to file an application (or disclose the invention). While the statutory benefits of provisional patent applications remain unchanged, the strategic benefits of provisional filings have become more important. Specifically, under the new system, solo inventors and small business entities may use provisional applications to edge out larger entities in the race to file a patent application. This is likely to result in a flood of provisional patent application in 2013, especially in highly competitive fields. However, even before the new rules took effect on March 16, 2013, inventors and business entities appeared to be increasingly cognizant of the power and importance of provisional patent applications.
Provisional patent applications were created as part of the 1995 GATT Uruguay Round implementation. In the 17 years following their inception, the absolute number of provisional patent application filings experienced near exponential growth. In fact, provisional applications more than doubled from 2000 to 2012 (80,000 in 2000 and more than 160,000 in 2012). The estimated 1.7 million provisional applications that have been filed since 1995 are only expected to grow in number as inventors, investors and businesses recognize the growing importance of patent protection for their technologies in an increasingly competitive and globalized marketplace.
