This is the first major overhaul of the patent system since 1952, and major it is. Here’s a line-up of some of the changes that the new law puts into effect.
The Biggie: Today, the patent system in the USA is a so-called “first-to-invent” system; an inventor who wants to prove that they invented something first can easily force another party into a protracted legal battle. However, the first-to-file system put into place by the America Invents Act would make things much clearer. In its most general terms, if you filed for the patent first, you get the protection.
Post-Grant Review: The Act creates a new process by which to challenge a patent within nine months of its issuance by presenting evidence directly to the Patent and Trademark Office itself, which will review the merits of the argument.
Fee Collections: The Patent Office can now set its own fees rather than relying on Congress to set reasonable fees for it. Congress will continue to have some budgetary power, but fees collected above the Patent Office’s budget will be placed into escrow, and the Patent Office can petition for their release. Fees will go up for some filers, but small entities may very well see fee reductions.
The bill does NOT include any new process for determining damages included in the America Invents Act. Jury awards for patent violations may continue to be huge for the foreseeable future.
The America Invents Act does little to clear up the controversy surrounding whether a “business method” patent or a software patent is a reasonable thing. There are provisions that may come very close to excluding software dealing with taxes from being patentable, for example.