Enacted into law September 16, 2011, the America Invents Act
("AIA"), makes dramatic changes to many substantive areas
of U.S. patent law. Five important provisions became effective upon
enactment, and five more will take effect September 16, 2012. The
federal courts have started to issue decisions based on the AIA,
and the U.S. Patent and Trademark Office ("USPTO") is
busy promulgating rules to implement new AIA procedures. Here is a
brief update:
False patent marking. "False marking"
refers to the marking of a product as being protected by a patent
when in fact, it is not. The AIA makes it considerably more
difficult for a party to benefit from bringing a lawsuit for false
patent marking, since the AIA requires that claimants show that the
false marking caused a competitive injury. The AIA also prohibits
claims for false marking based solely on marking with an expired
patent. Since September 16, several courts have rejected false
marking claims because of the
