AIA's impact upon small businesses


Paul J. Sutton

Well-funded corporations and corporate litigants have generally enjoyed considerable advantages when it comes to obtaining and fighting over US patent rights. Some might argue that to think otherwise would suggest naïveté.

And yet, to some, the Leahy-Smith America Invents Act (AIA) carries those advantages to new and higher levels.

Prior to the AIA’s coming into effect, small businesses and individual inventors were able to rely upon the ability to prove priority of inventorship, without having to enter a costly and critical race to the US Patent and Trademark Office (USPTO). Corroborated markings on a restaurant napkin could serve as evidence that an inventor conceived his invention prior to others. Under pre-AIA law, even if a subsequent inventor filed a patent application at the USPTO before him, a small inventor who filed without delay thereafter would be able establish in Interference Proceedings that he was entitled to the patent on this invention.

The ‘first-to-file’ provision of the AIA has radically altered the patent landscape for individual inventors and small businesses. Not only does it fail to protect the ability of a small inventor with limited funds to win a race to the USPTO, but it rewards established corporations with the resources that enable them to win those races. The ‘little fellow’ who requires time to gather the resources to consult a patent attorney and to file a patent application is at a significant disadvantage.

AIA, USPTO, patent filing, inventors