February 2012: Patent Litigation Update

In This Issue:

• Congress Provides Litigation-Type Review of Patents
• New Inter Partes Review Procedure
• New Post-Grant Review Procedure

Excerpt from Congress Provides Litigation-Type Review of Patents Signed into law by President Obama on September 16, 2011, the Leahy-Smith America Invents Act (“the Act”) is the most sweeping change in U.S. patent law in more than a century. Over the course of the next year, the Act will introduce a number of changes, large and small, to established U.S. patent law. For those companies who find themselves frequent targets of patent infringement allegations but would prefer to avoid lengthy federal court litigation, the Act expands the currently available Patent Office procedures for post-grant review of issued patents. Given the extent of the Act’s changes to U.S. patent practice, the changes are being implemented in multiple phases. Some provisions of the Act significantly impact the course of federal litigation. For example, the Act eliminates a defendant’s “best mode” defense to a charge of patent infringement, and significantly restricts a patent holder’s ability to sue many defendants at once in a single patent infringement lawsuit. Both of these changes have been in effect for six months. The most sweeping of the Act’s changes—those converting the United States from a patent system where patents are awarded to the first to invent to one where patents are awarded (under most circumstances) to the first to file an application—are set to go into effect with final implementation of the Act on February 16, 2013. Please see full issue below for more information.