The debate on "first to invent"
IS NOVELTY OBSOLETE? CHRONICLING THE IRRELEVANCE OF THE INVENTION DATE IN U.S. PATENT LAW which appeared in 16 Mich. Telecomm. Tech. L. Rev. 53 (2009).
The topic of first to file vs. first to invent is addressed.
Of interest to the present author is discussion about provisional applications, which appears in a section
Provisional Patent Applications as a Functional Substitute for Invention-Date-Based Novelty Rights.
One might not have thought of provisional applications as a SUBSTITUTE for Rule 131 affidavits, because inventors
usually do not file provisionals on the DATE of invention conception.
The law review has one paragraph:
Provisional patent applications have become popular since being made available in 1995. n109 The USPTO reports that applicants filed 143,030 provisional patent applications in fiscal year ("FY") 2008, [*80] compared with 466,147 non-provisional utility applications that year. n110 U.S. applicants file a great majority of these provisional applications, n111 which also correspond to more than half of the annual total of utility applications filed by U.S. residents. n112
There is also a paragraph:
Collectively, these figures indicate that a large number of provisional applications are themselves left floundering to be abandoned twelve months after filing. The large number of abandoned provisional applications suggests to me that provisional patent applications are likely being used as early place-holders to cheaply secure a priority date, rather than as a means of extending the patent term or postponing examination. Anecdotal reports suggest that this practice has become especially prevalent [*82] among universities developing early stage innovations. n123 Additionally, a small minority of applicants may be using incremental provisional applications to repeatedly update the disclosure before filing the utility application. n124 However, the value of incremental provisional application filings is limited by the hard twelve-month deadline for filing a non-provisional application. n125