The following analysis of the changes to 35 USC § 102 under the America Invents Act comes from Courtenay Brinckerhoff ,writer of PharmaPatents Blog and Partner at Foley & Lardner. Brinckerhoff questions whether any patent application will be better off under the new law?
The changes to 35 USC § 102 embodied in the America Invents Act (AIA) take effect on March 16, 2013, under complicated effective date provisions. The general consensus seems to be that applicants should try to file new applications before the law changes, because (for example) applications filed under the new law will be subject to a broader definition of prior art and will lose the ability to swear behind certain prior art by proving an earlier date of invention. Moreover, patents granted from such applications will be subject to challenge under the new post-grant review provisions.In counseling clients on how to prepare for the impact of patent reform, I’ve been trying to identify situations where an application might be better off under the new law. So far, only one scenario comes to mind–an application threatened by an inventor-based disclosure that was made before a foreign priority date. (more…)
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11.14.11 | America Invents Act | Stefanie Levine