Can a social-media post demonstrating a technology be used to establish patent priority?

This post is based on my answer to a question on Quora. The question further asked whether there is any precedent for the legal use of a ‘first reported online publication date’ in social media to establish priority of invention for the purpose of getting a patent at a later time.

my answer:

No, this will accomplish exactly the opposite of what you hope to achieve.

The only way to establish a priority date that will be meaningful for the purposes of getting a patent is to file a patent application. That patent application can be provisional or non-provisional.

The question details assume that the social media post itself will somehow be proof that the author invented something as-of a particular date. The current US patent system doesn’t work that way. It has never worked that way outside of the US, and in fact, even under the US’s old “first-to-invent” rules, a social media or other online post would have been of very limited value.

Instead of establishing a provable priority date, the post will become prior art that will prevent you from getting a patent in many countries (e.g., Europe). In other countries (like the US) it will start a clock for a date by which you must file a patent application in order for the post to not count as prior art. All this without providing any benefit in terms of establishing a priority date.

If you’re not ready to file a provisional patent application yet, then the best alternative is to keep the invention a secret until you either file a patent application or you decide that you don’t need a patent.

The question further asked why this is different than other areas of law (e.g., “How are law enforcement agencies allowed to use  social media posts/timelines to establish circumstances?”)My short answer is: It just is. Patent law, which generally falls under the umbrella of civil law as opposed to criminal law, is very different because it has to do with balancing a different set of incentives than those involved in criminal law enforcement.

Patents involve a trade-off between the Public and the Inventor. The Public has an interest in having Inventors disclose their inventions and sharing the inner workings of their inventions with the Public. The Inventor/Patent Spplicant has an interest in holding a temporary monopoly on practicing the Invention for as long as the Public will allow. Patent law is all about balancing those competing interests so that one doesn’t overwhelm the other.

Viewed through the lens of this balancing act, granting ownership over a disclosed Invention without subjecting the disclosure to an evaluation of whether it meets the other requirements for patentability (e.g., novelty, non-obviousness, etc.) might tip the balance too much in favor of the Patent Applicant. However, the Public does get some value from these pre-filing disclosures of an Invention. US patent law recognizes that fact and therefore offers a one-year grace period to file a patent application because it. Patent laws in countries without grace periods see things differently.

 

This post is based on my answer to a question posted on Quora:

Can a social-media post demonstrating a technology be used to establish patent priority?