One aspect of changing the patent laws in the American Invents Act (“AIA”) is parsing through when various aspects of the new provisions take effect. Although President Obama signed the Act on September 16, 2011 – the overall “Effective Date” — the timing of both whether and when certain key provisions will affect PTO practice on pending patents or previously-filed enforcement actions is not altogether clear.
For example, certain patent litigants will be subject to its provisions, while others will not. The new provisions for virtual and false marking in Section 16 of the AIA shall apply “to any case that is pending on, or commenced on or after the date of enactment of this Act.” Various sections of the AIA relating to priority of new patent applications do not take effect until “the expiration of the one-year period beginning on the date of the enactment of this Act and shall apply to any patent issued before, on, or after that Effective Date.”
Importantly, a major change in the AIA, the first-inventor-to-file provisions in Section 3 have an effective date “upon the expiration of the 18-month period beginning on the date of the enactment of this Act and shall apply to any application for patent, and to any patent issuing thereon that contains [...].”
Congress has given the USPTO longer horizons to establish various administrative and reporting deadlines. For example, in Section 23 of the AIA, the Director is charged with establishing three or more satellite offices in the United States to carry out the USPTO’s various responsibilities, subject, of course, to “available resources.”
One change took effect right away on September 16th: a new fee structure designed to beef up the USPTO’s coffers. Only time will tell whether the new fees authorized in the AIA will keep up with the burdens of implementing the AIA’s broad changes so that the Director will have “available resources” for expanding the empire with satellite offices.
For a chart listing various of the sections of the AIA and their effective dates, the USPTO has prepared a Helpful Chart (pdf).