By now you have certainly heard about the most revolutionary change to the U.S. patent laws since at least 1952, and most likely since the inception of the first patent laws in the U.S. in 1790. The America Invents Act (AIA) is poised to change patent practice from the ground up. The bill was signed into law by President Obama on September 16, 2011, and some minor provisions went effective immediately, or nearly immediately.
The next wave of changes comes online on September 16, 2012, and the United States Patent and Trademark Office is feverishly working on multiple final rules packages that will be required for the implementation of that next wave of changes. So far, the only one that has been released is the final rules package relative to third-party submissions of prior art during prosecution. See USPTO Publishes Final Rule on Preissuance Submissions.
Over the next several weeks, the USPTO will publish additional final rules packages necessary to implement other AIA provisions that will also become effective on September 16, 2012. These additional rules packages include inventor’s oath/declaration, supplemental examination, citation of a patent owner statement in a patent file, inter partes review, post grant review and covered business method review. All of these final rules are due out on or before August 16, 2012.
Despite the fact that these final rules packages are not yet out, the Office of Enrollment and Discipline has announced that the Patent Bar Examination will be updated to test these latest AIA-related changes to patent practice and patent law effective October 2, 2012. The updated examination will include provisions of the Leahy-Smith America Invents Act (AIA) that take effect September 16, 2012.
For those who have the option, now is the time to take the patent bar examination. I anticipate that anywhere from 7 to 12 questions will come from the new AIA changes once they become testable on October 2, 2012. On a 100-question examination that requires a 70% for passing, that means there will be too many question on the new material to simply forfeit those points. Sure, there are always 10 out of the 100 that are beta questions and you really only need 63 out of 90 to pass. Unfortunately, you never know which 10 are the beta questions. Further, recent history suggests that when a chance occurs, the new material gets tested quite heavily.
If you cannot take the Patent Bar Exam prior to October 2, 2012, you should at the very least try and schedule time to study for and pass the exam before April 2013. The final wave of AIA implementation will occur on March 16, 2013, and that will usher in “first to file.” “First to invent” will remain viable because any application filed on or before March 15, 2013, will receive treatment under “first to invent.” Thus, you will need to learn an entirely new 102 regime and the old regime will still be relevant, which will make for a more complex examination and significantly increase the amount of information you need to learn overall.
For those wishing to take a patent bar review course, I recommend the PLI Patent Bar Review Course. I am biased because I have taught the live course along with John White for 12 years now, but I really do believe it is an excellent course. Our first-time pass rate is close to 90%. Ask around and I think most will agree that the PLI course is excellent.
For further information concerning AIA, please refer to the AIA Implementation web page at http://www.uspto.gov/aia_implementation/index.jsp.