This morning, President Obama signed the America Invents Act (H.R. 1249) into law. This represents the largest reform to the U.S. patent system in over 60 years. The goal of the Act is to create better quality patents in a shorter time, spur the economy, and create jobs. Whether this will be the reality remains to be seen.
Many of the provisions of the Act will go into effect in one year, so many changes won’t be noticed until 2012. The more radical changes to the patent system, including moving to a “first-inventor-to-file” system and expanding prior art, won’t go into effect until March 2013. However, we will see some changes soon, including an increase in fees on September 26, 2011. Some provisions are effective immediately.
While it may take some time to see the effects of the new law, there are some indications of things to come. For instance, the importance of keeping an invention secret until a patent application is filed, and moving swiftly in filing a patent application, will be increasingly important since the realm of prior art will be expanded. Also, an inventor who is the first to invent but is not the first to file an application may not receive a patent on the invention unless they can prove the earlier filer derived the application from them. Once a patent application is filed, third parties can submit prior art challenging the application within certain time limits and requirements. Even issued patents can be challenged by post-grant review and inter partes review for validity. Accordingly, there will be more ways to challenge patents and patent applications, and it may become more difficult to obtain a patent.
Despite the aspirations of creating a more streamlined patent process, the new law is not always straightforward. The rules of the patent system are changing, and are complicated in some instances. Accordingly, implementation of the new law will be a challenge.
The U.S. Patent & Trademark Office has created a micro-site devoted to explaining the implementation of the law. To assist in this process, they are seeking advice and guidance from the public on how best to do so. You can view the website and submit comments atwww.uspto.gov/patents/init_events/aia_implementation.jsp