The Leahy-Smith America Invents Act (AIA), legislation that was signed into law by President Barack Obama in Sept., 2011, is widely considered to represent the most significant redo to the U.S. patent system since 1952.
Over an 18-month period, the law phases in significant changes to the America’s system of filing and protecting patents. How the law is faring so far was the subject of “Implementation of the America Invents Act,” an expert symposium held on April 19 at The Catholic University of America’s Columbus School of Law.
The afternoon panel discussion featured an all-star lineup in the world of patent law. Panelists included the Hon. James D. Smith, chief patent judge, United States Patent and Trademark Office; Janet Gongola, United States Patent and Trademark Office; Joe Matal, Judiciary Committee Counsel to Sen. Jon Kyl (R-AZ); and Antigone Peyton, Cloudigy Law PLLC. Hon. Ed Damich of the U.S. Court of Federal Claims and an adjunct lecturer at the law school, moderated the discussion.
Many of the key provisions of AIA have been under consideration on Capitol Hill going all the way to 1966. (One panelist quipped that Congress can hardly be accused of rushing the bill through the pipeline).
It’s most significant change to the U.S. patent system is switching from a "first to invent" to a "first to file" system.
The law also eliminates eliminates false marking lawsuits except for ones filed by the U.S. government or filed by a competitor who can prove competitive injury.
The new law has been hotly debated. Supporters of the America Invents Act argue that it will create jobs, bolster innovation, streamline the patent system, reduce patent litigation, and keep the U.S. competitive globally.
Opponents of the law fear that it will help market incumbents become further entrenched, the rate of startup formation will fall to levels in other countries, and access to angel and venture capital will fall to the levels of other countries because the weakening of patent protection diminishes incentives for investments and development.
Critics also complain that the new law fails to address the extensive backlog of existing patent applications.
“AIA has proven to be the provoker of many comments,” observed Judge Smith.