Relearning Patent Law

By Kyu Hee Chu

Reviewed by Jennifer Williams

The law is constantly evolving. Sounds like something you would hear in a first-year law school class, but it’s true.  If you are a lawyer practicing patent law, you probably have been re-familiarized with that concept very recently – as a result of the America Invents Act.  Just last Friday (September 16, 2011), President Obama signed the patent reform bill into law, and now it’s time to learn the new rules.

Out of the many changes that the act calls for, some of the “major” changes that have been receiving much attention are:

1. First inventor to file: The America Invents Act now allows a patent to be awarded to the inventor who first files a patent application, rather than to the one who first comes up with the invention and files later (which was the old U.S. patent system).

2. Challenging patents: Under the new act, a) people will be able to ask the USPTO to review a patent on any grounds within 9 months of the patent grant date, b) there will be a new “transitional proceeding” which will make it easier to challenge business method patents, and c) there will be a proceeding dealing with allegations that the inventor improperly derived his or her invention from someone else.

3. More funding: The act provides for more funding to help speed up the patent examination process.[1]

There is much optimism for the act, including from President Obama, who believes that the act will help the U.S. Patent and Trademark Office by allowing it to hire more people and thus go through the applications that currently need to be reviewed more quickly and efficiently.[2]

However, there is also much dissatisfaction with the act – because many people believe that the new law doesn’t do much to actually change many of the existing problems. One of the criticisms of some of the changes in the new law, especially the changes in challenging patents, is that the new procedures will not really allow the ordinary person to challenge patents unless they are very diligent in monitoring the USPTO and that if people do not become aware of the patents until later, in effect the new changes will not be offering ordinary people any new real chances at challenging patents.[3]

Who is right? Will the new patent act bring the changes that it is intended to bring or will it end up being an act that nobody really worries about? As it usually is with the law, we will have to wait and see, but both sides have valid points – it seems likely that the increased funding will help speed up the patent examination process, but at the same time, the new changes in challenging patents may not be as effective as it is intended to be. Whatever happens, the fact that a new patent act has been passed is in itself a great achievement and shows that there is growing interest in the intellectual property arena.

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