Don’t forget about the AIA

The new news in the patent world is the proposed legislation intended to kill patent trolls. The less new news in the patent world is the Supreme Court agreeing to hear cases considering whether successful defendants in patent infringement litigation should have an easier time recovering their attorneys fees from the plaintiff. The obscure but interesting recent news in the patent world is a Federal Circuit decision [pdf] flexing the muscles of the written description requirements for patent claims broadened during prosecution. All of these stories are current, and certainly they all matter. They are not the most important patent news story of the current day, however.

US patent system is still only barely into the new first-to-file system created by the America Invents Act in March, 2013. It is safe to say that virtually all patent prosecution since March 16th, the day the AIA went into force, and today (November 1st) has been for applications filed before the AIA and governed by the former law. The best estimates indicate that only a small handful of patent applications filed under the new system have issued, and of course those only issued so quickly due to the use of accelerated examination proceedings. 

The new legal standards of the US patent system are something like an iceberg - we know it is there, and we can even see a little bit of it, but we can’t exactly discern the contours beneath the surface. The statute itself [pdf] gives us the basic outline, of course,  and the Patent Office is even providing resources for practicing in the new system, but only the practical experience of prosecuting patent applications and the legal guidance of court decisions applying the new law will make the detailed contours of the new system clear. That slow process makes for a poor news story, but it is the most important thing happening in patent law today.