The America Invents Act (H.R. 1249) (AIA) became law in September 2011. The AIA made substantial changes in the patent laws, including the shift to a first-to-file patent system. Some of the law’s effects will not be felt in the litigation context for years. Certain changes, however, had immediate repercussions. The most significant relate to false marking and joinder of parties.
False Marking
The AIA retroactively eliminated qui tam actionsthe right of private individuals to sue on behalf of the government and recover penalties when a product is falsely marked as patented. 35 U.S.C. §292(a). At the same time, AIA added a private action for damages for those who suffer a “competitive injury” from a false marking violation. 35 U.S.C. §292(b).
