The September 2011 America Invents Act put into law the most comprehensive changes in the patent system in over 60 years. In an effort to streamline the process through which inventions are transformed into viable businesses, this patent reform is aimed at increasing the likelihood that patents will be issued, speeding up procedures, and providing stronger incentives for potential start-ups to file and grow their businesses. The changes prompted by the America Invents Act are expected to be phased in over an 18-month period, with complete implementation occurring by March 2013. Three of the most significant reforms are as follows: a shift from a “first to invent” to “first to file” system, the addition of a fast-track approval process, and a post-grant review process.
The “first inventor to file” standard for patent approval marks a shift from a system where patents generally went to whoever could prove they invented the item first to one in which patents will be extended to those who actually file first, putting an end to patent challenges where claims are made for an earlier invention date. Although critics point out that this may cause smaller companies to rush to file with a less-than-ideal product, many believe that in the end it will make it easier for those companies to secure the investments needed to move their business forward.
The fast track reform establishes an expedited system by which businesses are able to bypass the often large applications backlog, which can extend one’s wait by years. Instead, for a higher fee, businesses can have the reassurance of a one-year wait time. While some small businesses welcome this option, other owners feel that it gives bigger companies who have larger capital a distinct advantage.
By establishing a post-grant review process, the new law essentially allows anyone to challenge a patent claim within the nine-month period after it’s been granted. Many believe this will help businesses avoid spending millions in costly litigation processes and is a way to strengthen the patent in the long term (if it gets through this process). Others also believe this is a good deterrent for the practice of filing broad patents.
Zimmerman, Eilene. “Business Owners Adjusting to Overhaul of Patent System.” New York Times. 2/8/12. (2/15/12.) http://www.nytimes.com/2012/02/09/business/smallbusiness/business-owners-adjusting-to-patent-system-overhaul.html?_r=1&ref=smallbusiness.