First come, first served. We soon learn that hard lesson in life. The same applies in patenting, but in this case to the inventor's advantage. Just suppose you have discovered a new and inventive way of speeding up your production process and want to stop your competitors from simply copying it, even though you still need some time to investigate it further. In that case a priority right will come in handy.
The way patents are obtained varies from country to country. If you want to obtain a Japanese patent we can arrange that for you in Japan. If you want an American patent we can arrange that for you in the US, and so on. However patenting always involves a lengthy process. You may also not yet know exactly where you want to file a patent application and may want to carry out more market research first. Are you then running the risk that your competitors will run off with your innovation while you do so? Fortunately, you are not, thanks to the priority right.
How does it work?
In the Netherlands the moment you apply for a patent, the filing date, is what is important. We refer to this as the priority date. Anyone who comes up with the same invention after that date is too late; you have beaten them to it. The right that you acquire in this way is called the priority right. From the date that you filed the patent you have 12 months to decide whether you want to also file it in other countries. In the meantime it is not possible for others to copy your invention or file a patent as you have beaten them to it.
Advantages of a priority right
The beauty of a priority right is that the date is set in stone. Here is an example to illustrate this. You file a patent for self-tying shoelaces in the Netherlands on 1 March 2022. You subsequently conduct research into the sales market in the US, talk to people with joint problems, meet with investors and decide to also file a patent in the US on 1 October 2022. In this case the filing date for the US patent will still be assumed to be 1 March 2022.
Once given, it stays given.
If someone in the US were to also come up with the crazy idea of self-tying shoelaces between 1 March and 1 October, it will make no difference that your patent had not yet been filed there. In the case of the later application, the examination date for novelty and inventive step will be put back to the date of the Dutch filing. A childish lesson in life applies in this case too: once given, it stays given. From the priority date onwards, you can talk about your innovation and publish information about it. After all, you have a priority right.
The first year after filing will provide you with lots of valuable information. The Netherlands Patent Office will provide feedback, for example, and you will receive the first assessment of the patentability of your invention. This is an important year in which you can carefully examine what you are spending your money on.
Choice of countries can be deferred.
However, in order to invoke a priority right, you do have to meet a number of requirements. One of these is that you may not change a single dot or comma in the original patent application. So during the initial discussions with your patent attorney, you must really focus on the actual innovation itself. Many companies will already have gone a step further and considered where they want to protect their innovation. In the first year you will have protection everywhere. The application is often submitted via the NL-PCT route. This route gives you ample time to decide where else you want to protect your innovation.
So leave the choice of countries for what it is and focus on your invention. Describe your innovation in detail, consider how you want to make money from it and whether your innovation could perhaps be used even more broadly. Your patent attorney will then do the rest to ensure that you can enjoy all the benefits of your priority right.
Keep an eye on our blogs. Soon you will be able to read more about three important requirements you have to meet in order to be able to invoke a priority right.
If you have any other questions about patenting, please feel free to contact me.
You can also chat with me or one of my colleagues on working days between 2pm and 5pm. If you go to www.epc.nl/en/, the chat function will open automatically. We are there to answer your questions.