On December 28, 2012, the Senate passed an amendment correcting certain portions of the AIA, and the House approved the amendment via voice vote on Tuesday, January 1, 2013. The amendment will permit inter partes review of patents issuing today, without having to wait the 9 month period. As originally drafted, Section 311(c) of Title 35 permitted inter partes review only after a 9 month waiting period, which was intended to apply only to patents issuing from applications filed after March 16, 2013 (e.g., to which Section 3(n)(1) of the AIA applied). The amendment corrects the AIA so that patents that are not subject to Section 3(n)(1) of the AIA may now be subject to inter partes review immediately upon issuance.
Another correction made by the amendment was to clarify the time on which a petition for Derivation may be filed. The AIA as drafted was not entirely clear, but the amendment makes it clear that the period for filing a petition for derivation is within one year of the earlier patent’s grant or within one year from publication of the earlier application, whichever is earlier.
A copy of the amendment can be found here.
