Just over a year ago, President Obama signed the America Invents Act (AIA), signalling one of the most significant revisions to U.S. patent law since 1952. As intellectual property in general, and patents in particular, are critical assets to companies involved in the energy industry, it is important to understand how this legislation may affect your business. The main revisions this article will discuss relate to a change to a “first-to-file” regime and the addition of ways to challenge patent applications.
The first major change implemented by the AIA converts U.S. patent law from a “first-to-invent” regime to a “first-to-file” regime. This change is intended to harmonize the U.S. patent system with most other worldwide jurisdictions, including Canada. While this revision does not take effect until March 2013, it will change filing strategies for many companies, and encourage more frequent and earlier filing of patent applications. Under the current legislation, an applicant could successfully obtain a patent, even if someone else had previously filed a patent application for substantially the same invention. However, they would have to provide evidence that they were the first inventor. In just a few months’ time, this strategy will no longer be available and it will be critical to be the first to file.
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