Thriving in a new patent world : mitigating the unintended consequences of the America Invents Act

Open Access

Abstract

Our article epitomizes systems thinking not only to identify possible unintended consequences of the Leahy-Smith America Invents Act (AIA), but also to offer suggestions mitigating their impact. Employing two-loop, generic system archetypes, our intent is to help stakeholders in intellectual property (IP) understand some of the nuances influencing the patent lifecycle linked to AIA. Building on the lingua franca used in patent law, our article highlights four important changes: being the first-to-file for protection; eliminating best mode disclosure; expanding the definition of prior art; and expanding post-grant review. Armed with a better understanding of the system issues imbedded in the legislation, innovators and entrepreneurs can develop strategies to deal with the attendant issues. For example, the tragedy of the commons associated with first-to-file highlights the need to increase R&D resources; else, over time incremental innovation will inevitably dominate efforts to modify the patent portfolio. Overall, AIA represents a step forward in harmonizing the US with the rest of the world while it increases the transparency of the legal maze that remains patent law; however, the changes bring allocation issues, secrecy, and time pressure to the forefront of the conversation about new product development. Recognition of these impacts is relevant worldwide for anyone contemplating a US patent or any entity attempting to maintain a viable portfolio of intellectual property.