Patent Reform Now One Signature Away: Senate Sends Historic Bill to President's Desk

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Moments ago, the United States Senate voted 89 to 9 to send House Bill H.R. 1249 (titled "the America Invents Act") to President Obama's desk. Although a few last-minute amendments momentarily threatened to stall the bill's passage, the Senate voted overwhelmingly to approve the same version of the bill that the House of Representatives passed before the August break. Having received the blessings of both houses of the 112th Congress, the Bill now moves directly to the President, where he is expected to sign it into law almost immediately.

If signed into law, the America Invents Act would transition the U.S. Patent system from a first-to-invent system to a first-inventor-to-file system. The first-inventor-to-file system would give inventorship priority to the first individual inventor to file a patent application for a particular invention. That system follows the procedures already in place in Europe but would contrast sharply with the U.S.'s current system, which gives priority to the first inventor in some circumstances even if that inventor is not the first to file an application with the USPTO. The legislation would also add a new nine-month window for post-grant review of patent validity and reform the already existing inter partes reexamination process into a new inter partes review process. With both post-grant review and the new inter partes review, the burden of proof on the challenger would be to demonstrate that the claims are invalid by a preponderance of the evidence, and the challenger would be precluded citing the same prior art in an action for infringement in Federal Court.

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