It appears that U.S. patent law amendments may actually happen this year. On June 23, 2011 the U.S. House of Representatives passed H.R. 1249 (the America Invents Act).
The House bill contains several provisions that are similar to a patent reform bill that was passed by the Senate in March. For example, both bills will change the U.S. patent system to a first-to-file system, rather than system that automatically favors the first inventor.
However, the Senate and House bills do differ in several significant ways:
- The House version will not give the USPTO full authority to set its own fees and retain funds that it collects. Instead, the House version permits Congress to divert USPTO fees to other purposes.
- The House bill eliminates the right of private individuals to file false patent marking, and instead will limit that right to competitors who have incurred economic harm.
- The House bill expands the “prior user defense ” to nearly all technologies. Currently applicable only to business methods, the prior user defense can be asserted by an accused patent infringer who actually used the patented invention more than one year before a patent’s effective filing date.
The House and Senate must resolve the differences between the two bills before we can say that patent reform is truly imminent.