The America Invents Act has fundamentally changed how inventors obtain, protest and defend patents. But, as the March 2013 implementation deadline comes into view, some are wondering if the small business community will realize the anticipated benefits of the legislative reforms.
As Columbus Business First columnist Martin Miller noted, the AIA provides small and medium-sized businesses (SMBs) with several new cost-control measures. Instead of dealing exclusively with a District Court system that can be prohibitively expensive for some firms, they now have the option to challenge the patent office by directly submitting supplementary information - such as prior art - for further review. The transition to a first to file system has also been viewed as a means of neutralizing, to a certain extent, the superior legal resources of larger corporations.
But, according to the Washington Post, the multiplication of patent prosecution options and strategies could actually lead to more complex and costly litigation in some cases. For instance, accused infringers may decide to build two-prong strategies so that an unsuccessful defense in District Court could be overturned by a successful challenge at the patent office.
Additionally, the first to file system may only be a competitive advantage for smaller firms equipped to act with the requisite speed. As the Post noted, SMBs could be forced to file narrower applications in the interest of time simply to stave off larger companies that have the resources to tackle the administrative burden of a broader patent at a much faster rate.