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The America Invents Act (AIA), signed into law Sept 16, 2011, has brought about the biggest change in U.S. patent law since the 1952 Patents Act. The 37 sections of the Act, its multiphase implementation, and the ink spilled in communicating its significance are ample testament to that fact. The final phase of implementation of this Act will arrive in a few short months. With the AIA having been around for some time and other areas of the law competing for the attention of in-house counsel, there is a risk that several significant aspects of the final phase of AIA implementation could be overlooked by some. With that in mind, this article focuses on three significant changes in U.S. patent law resulting from this final phase of implementing the AIA.

  1. First-inventor-to file system – date of invention loses significance
  2. Grace period is narrowed to disclosures originating with inventor
  3. Challenge to competing inventor limited to derivation of invention

The final phase of AIA implementation, occurring on March 16, 2013, will convert the U.S. patent system from a first-to-invent system to a first-inventor-to-file system, advancing the goal of harmonizing the U.S. patent system with systems used in other countries. This shift to a first-inventor-to-file patenting system is one of the more noteworthy changes resulting from the AIA. A first-inventor-to-file patenting system can be seen as favoring big business at the expense of sole inventors, business start-ups and many non-profits. Established enterprises typically have in-house legal counsel networked to outside counsel in a manner designed to efficiently secure patent protection for technological innovations, and the little guy will be challenged to arrive first at the U.S. Patent & Trademark Office (USPTO) seeking protection for similar or identical technology. Beyond the commercial implications of this change in U.S. patent law, it is worthwhile to see how the U.S. is bringing about that change.

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