We continue to report on the America Invents Act with regard to changes that take effect now. These include:
1. It is no longer possible to obtain a patent directed to a human organism. The intent of the provision is to prevent patenting humans. However, it remains to be seen how the courts interpret this. For example, if a new drug cures diseases, is it directed to a human organism? It is unlikely to be held that way, but the exact scope of this provision is uncertain.
2. It is no longer possible to patent any tax strategy for reducing, avoiding, or deferring tax liability.
3. The standard for the Patent Office to grant inter partes (at least two parties involved) reexamination has been tightened. The person requesting reexamination needs to show “that there is a reasonable likelihood that the requester will prevail with respect to at least one of the claims challenged in the request.” The prior standard was a showing of a “substantial new question of patentability.”
