![]() ![]() (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States. More concerning, it may have created unintended risks for innovating persons and entities, particularly individuals and smaller and start-up entities, whose business models necessarily involve engaging in early-stage commercial partnerships in pursuit of a larger goal or enterprise.īoth before and after the AIA, Section 102 of the United States Code defined the conditions under which an invention is determined to be novel, i.e., that it is new, as well as events that would bar an applicant from obtaining a patent, the so-called “statutory bars.” Before the AIA revisions, Section 102 provided:Ī person shall be entitled to a patent unless. But Congress’ injection of these words into the patent statute’s definitions of novelty and prior art appears to have missed its mark. The words in question are the phrase “or otherwise available to the public” and the word “disclosure.” These words or words like them have been used in the patent lexicon long before the AIA. ![]() Who knew what mischief just seven of the AIA’s more than twenty-five thousand words contained? The Supreme Court answered earlier this year in Helsinn Healthcare S. patent law that aligned it with patent systems prevailing in the rest of the world. ![]() ![]() Many observers greeted the September 16, 2011, passage of the Leahy-Smith America Invents Act (AIA) into law as a long-overdue overhaul of U.S. Unintended consequences from regulating or legislating to achieve a goal can occur and cause havoc in the markets or an economy. Lawmakers who interfere with commerce and the normal creation of jobs in an economy run the risk of doing harm rather than good. The law of unintended consequences pushes us ceaselessly through the years, permitting no pause for perspective. This article first appeared in the Jedition of the Legal Intelligencer. Helsinn’s Law of Unintended Consequences: Avoiding Loss of Patent Rights in the Post-AIA Era ![]()
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