Swear Back of A Reference - Background and Rationale

Background and Rationale

There is a common misconception that if an inventor can prove they are the original inventor of an invention, they deserve a patent. This is not necessarily true.

National governments grant patents to promote the welfare of their respective nations. The rationale behind this is that general welfare of a nation is improved if inventions that would otherwise be kept secret are made public. Patents encourage public disclosure by granting limited monopoly rights to inventors for the new and non-obvious aspects of their inventions that they describe in their patent applications.

Accordingly, if an invention has already been disclosed to the public before a patent application is filed, there is no need for a government incentive to disclose the invention. Whether or not an inventor can "prove" they made the original invention before someone else made it public is irrelevant. Almost every country in the world bars an inventor from getting a patent once the invention is public.

A critical exception is the United States. The United States grants a one-year grace period from when an invention first becomes public to when an inventor has to file their patent application. If, in the course of patent application examination, a patent examiner cites a reference that predates the filing date of the patent application by less than a year, an inventor may still get a US patent if they can swear back of the publication date of the reference.