The Leahy-Smith America Invents Patent Act is one of the most significant changes to US patent law since 1952. Some of the key provisions of the act include a new first to file process, post grant review, derivation, supplemental examination steps and new rules which will impact patent litigation proceedings.
The first to file system is detailed in Section 3, and specifies that patents will be issued to the first inventors who file an application on a new invention rather than the first to invent or reduce an invention idea to practice.
A patent will be granted under this rule unless the invention was already published, patented or available in the market. Because the first to file system raises concerns about applicants stealing ideas from others, the act also allows for derivation challenges within 1 year of a patent being issued. By shifting to the first to file system, US patent law falls in line with the patent schemes of many other countries worldwide.
The Patent Act was signed into law on September 16th, 2011 and several of the changes to patent law take effect immediately. These include new standards for inter partes re-examination and some other changes that will directly impact patent litigation proceedings.
Taking effect of September 26, 2011 there will also be a 15% surcharge imposed on top of the USPTO fee schedule, and a new expedited examination will be offered for those willing to pay additional fees.
The other changes to the act will be effective one year from the signing date, with the exception of the post grant review and prior art changes, which will take effect 18 months after the signature date (March 16, 2013). It is important to note that the new first to file system is considered to be part of these prior art changes.