The Leahy-Smith America Invents Act (AIA) was signed into law in September of 2011, but many of its central provisions did not go into effect until Mar. 16, 2013. This means that we are fast approaching the one-year anniversary of many of the new policies and procedures that it brought forth, including the “first to file” provision. The question looms, then, did this change to the law help or hurt inventors?
Prior to the AIA, the U.S. had a “first to invent” system of granting patents rewarded the inventor who could demonstrate that he or she had invented the technology first. This change to “first inventor to file” puts the U.S. in line with other nations, but some experts say that the new provisions have placed undue strain on small businesses.
In the old system, inventors could publicly disclose an invention and be afforded a 12-month grace period that would allow them to tinker with and improve the technology before they needed to apply for patent protection. Now, however, companies feel the pressure to file as early as possible, and that process is expensive. In the past, companies could use that 12-month period to raise capital, but now they feel the need to file as soon as possible, often ending up filing for patents on technology that turns out to be a dead end.
Of course, patent reform is still a big topic in Washington, as Congress continues to debate bills that would once again change the way the system works. Topics include fee shifting, increased transparency and more, but the fact of the matter is, the first-to-file provision will remain intact. Companies need to take other measures, such as conducting extensive research and hiring the right patent attorney.
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