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New US patent law reforms the US patent system
On September 16, 2011, President Barack Obama signed into law the “America Invents Act”. Said Act provides a transition of the U.S. Patent system from a first-to-invent system to a first- to-file system.
That system follows the procedures already in place in Europe but contrast sharply with the U.S.'s current system, which gives priority to the first inventor in some circumstances even if that inventor is not the first to file an application with the US-patent Office.
The Act also add a new nine-month window for post-grant review of patent validity and reform the already existing inter partes reexamination process into a new inter partes review process. With both post-grant review and the new inter partes review, the burden of proof on the challenger is to demonstrate that the claims are invalid by a preponderance of the evidence, and the challenger would be precluded citing the same prior art in an action for infringement in Federal Court.
Many of the provisions of the Act will take effect one year after it is signed into law, but there are some exceptions. Importantly, the first-inventor-to-file provisions will apply only to patent applications having an "effective filing date" on or after March 16, 2013.
Other provisions, such as the elimination of the best-mode requirement challenge to patent validity, will take effect immediately, whereas in increase of 15% of the Patent Office Fees will take effect on September 26, 2011. In relation to the latter we recommend that any outstanding fees, such as maintenance fees, issuance fees, and filing fees be paid before September 26, 2011.
If you have any questions or comments in this respect, please do not hesitate to contact us.
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