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Patent Reform 2011

This report summarizes the status of patent reform legislation as of August 16, 2011, focusing on key provisions such as the first-to-file system, changes in prior user rights, and adjustments to post-grant and inter partes review processes. Notable updates include an end to fee diversion at the PTO, false marking reforms, and provisions favoring a 'jobs bill' narrative. The report also outlines immediate and delayed changes, including fee adjustments and implementation timelines for various provisions, along with a call for public comment from the USPTO.

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Patent Reform 2011

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  1. Patent Reform 2011 Status Report Austin Intellectual Property Law Assoc. August 16, 2011 Brian W. Oaks brian.oaks@bakerbotts.com

  2. Recap • S. 23 approved by the Senate and H.R. 1249 approved by House • Key Provisions • First to file (and associated prior art changes) • Prior user rights/defense (all patents) • Post Grant and Inter Partes Review • End of PTO fee diversion (sort of) • False marking reform

  3. Current Status of Legislation • Ball is in Senate's court, but delayed due to debt fight • Senate cloture vote on Sept. 6; vote expected later that week • House bill expected to be brought and passed without amendment in Senate • It's now a "jobs bill" and both sides want to show progress

  4. Timeline for Implementation • Immediate Changes • Change in reexam standard of review (reasonable likelihood requester will prevail) • False marking reform (must have competitive injury; marking expired patent is OK) • Virtual marking allowed (via web site marked on product) • Elimination of best mode as basis for invalidity • Prohibition on patenting of human organisms • Prioritized examination (Track 1) • 15% increase in almost all fees and addition of micro entity status (75% reduction in fees)

  5. Timeline for Implementation • Delayed Changes • First to file (18 months) • Third party pre-issuance submissions (1 year) • Supplemental examination (1 year) • Post Grant Review (1 year) • Inter Partes Review (1 year) • Special review for business method patents (1 year)

  6. PTO Request for Comments • USPTO is asking for comments related to rule-making required by expected new law • See: USTPO site > Patents > Initiatives and Events > Leahy-Smith America Invents Action Implementation

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