What happens if you apply for a similar patent around the same time? 3 Answers as of November 03, 2010

I recently filed a patent application, but I just came across another pending patent that is very similar to mine. We filed for the patents around the same time, but his application is a few weeks older than mine. Will his application trump mine? If my application is rejected for being too similar to his, is there anything I can do to still patent or market my product?

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Kafantaris Law Group
Kafantaris Law Group | Theo Kafantaris
Because he filed before you, he is presumed to be the first inventor. You would need to provide evidence showing that you had an earlier date of invention.
Answer Applies to: California
Replied: 11/3/2010
Devon & Associates
Devon & Associates | Marcia A. Devon
Assuming the two of you are disclosing and claiming the same subject matter, the U.S. patent is ultimately awarded to the inventor who first conceived the invention and diligently "reduced it to practice" [i.e. made a working prototype]. It is important to gather your evidence indicating the date you first conceived it and the dates you made the prototype. As the other guy filed with the USPTO first, you would have to begin an "interference" proceeding in the USPTO to determine who is the first inventor. It is also possible that neither of you are entitled to a patent, depending on the circumstances. If so, you would both be free to market your products. You have presented a complex fact situation and I recommend you seek the assistance of a patent attorney to advise you.
Answer Applies to: California
Replied: 11/2/2010
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
In the USA the person who conceived of the invention first will receive the patent. If your patent is very similar to the other one the patent office will let you know and will reject you from it (to which you can respond with your earlier date of invention) or ask you to provoke a interference.
Answer Applies to: Oregon
Replied: 11/1/2010
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