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)