Determining the first inventor in conflict situations

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For patent applications filed before October 1, 1989, in situations where two or more applicants for a patent claim the same invention (or where one of the applicants discloses, but does not claim the same invention) the patent is granted to the inventor who is found to have been the first to invent the invention, as opposed to the applicant who first filed a patent application for the invention.

Section 43 of the pre-1989 Act applies in such cases and the Patent Appeal Board examines the affidavits and supporting evidence submitted by the conflicting applicants and drafts a proposed decision for the Commissioner of Patents as to which applicant is deemed to be the first inventor. The contested claims are allowed or rejected in accordance with the Commissioner's decision unless one of the applicants commences proceedings in the Federal Court for the determination of their respective rights.

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