Leahy-Smith America Invents Act Passed By Senate

The Leahy-Smith America Invents Act (the "Act") was passed by the U.S. Senate on September 8, 2011, without amendment, and is expected to be ratified by President Obama within the next week. The Act makes significant changes to the patent regime in the U.S. Some of these changes are discussed below.

Most notably, the Act will shift the U.S. from a "first-to-invent" system to a modified "first-to-file" system for determining prior art and priority of applications, joining the rest of the world in this regard. Under the current regime, publications and patent applications made by unrelated parties prior to the date of invention for an application at issue can be cited against the application in order to determine the patentability of the claimed invention. This system can be onerous for the U.S. Patent and Trademark Office and the courts to support due to the evidentiary requirements. Under the modified "first-to-file" system introduced by the Act, publications made