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The commercial use defense set forth in the America Invents Act created a new defense to patent infringement, and several best practices have been prompted as a result. Documentation policies should be revised to help ensure that important trade secrets for a product line can take advantage of this new defense. Due diligence checklists for mergers and acquisitions should also be updated to ensure that important information related to this new defense be obtained and evaluated because early assessments of such information can impact the negotiation strategy and valuation of the acquisition target.

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