On March 16, the most important part of the 2011 America Invents Act takes effect, and conforms the US patent system with the rest of the world.  On that date, we switch to measuring patent priority based on the first company to file an application.  Our old system is based on priority of invention, which meant that you got the patent if you could prove by notebooks and the like that you had the patentable idea first.

Other aspects of the Act already have taken effect.  Third parties now can themselves in effect intervene by providing proof of prior art, thereby short-circuiting a given application as lacking in novelty.  We have also added a procedure by which, for nine months after a patent issues, anyone can challenge it post-issuance.

What is the effect of the new system?.  We likely will see applications filed early, of course.  We will see larger companies monitoring filings so as to promptly provide proof of prior art and thus try to head off patent issuances.  We may see it become more difficult to obtain patents and that may further impact a difficult venture finance market.  We likely will see companies avail themselves of accelerated processing which will be available upon payment of an additional fee. And hopefully we will see the PTO eating into its substantial backlog of applications as it opens more offices and hires more staff with its increasing fee schedule.

Meanwhile the life science community has gotten in the habit of closely watching the US Supreme Court, which about a year ago (in the Prometheus case) put in doubt some patents covering methods and diagnostics.  A larger shoe may drop by this summer when the Court decides the Myriad Genetics case and addresses the patentability of genes and isolated DNA.