Another hotly-debated aspect of the new law is a revised post-grant patent review mechanism, which allows third-parties to challenge on any ground the validity of a patent within nine months of its issuance, theoretically giving people a tool to weed out bogus patents. But the problem is that, again, large corporations with huge legal teams that constantly survey the Patent Office for new submissions will be the main benificiaries of this provision.
A couple other notable sections of the law include a pre-grant submission review provision that allows third-parties to submit information about a certain patent to a Patent Office examiner, prior to the granting of that patent. This, in theory, could help reduce the number of patents issued for previously-filed concepts, as examiners could be better informed. The law also adds a 75 percent discount on Patent Office fees for "micro entities" like the "'garage inventor' or solo application developer," Chang said. Under the old law these micro entities were lumped under a 50 percent discount for larger "small business concerns."
Other new provisions include the prior business rights provision and "business method" review. Chang explained, "The new law expands the breadth of certain kinds of defenses that an accused infringer has to a claim of patent infringement. The change to prior user rights will help those who have been using a system or process for a long time and suddenly get accused of infringing a new patent."
"The business method review program provides for a way to have the PTO review the validity of a so-called 'business method' patent, and can be a more inexpensive way for an accused infringer to challenge the validity of a patent."
Even with those new changes to the process of filing a patent, Chang is unsure if the law will reduce patent litigation so often seen in the video game industry. "Many of the [law's] changes allow for greater challenges to the validity of patents, and that could serve to reduce the number of patents that survive through to the end of trial, so in that respect you might see a reduction in the number of patent cases," he said.
"It's hard to predict, though," Chang conceded. "Patents are an important business tool, and any such reduction could be offset by the simple fact that the video game industry continues to grow and grow, and competition continues to get more and more fierce."
Additionally, the America Invents Act does little to specifically target reform of the highly controversial area of software patents, or even more specifically, gameplay patents, so we'll likely continue to see fiery debate over that type of litigation which is unique to game development.
One major organization that apparently didn't have anything to say about the major America Invents Act is U.S. video game trade body the Entertainment Software Association. After multiple tries for a statement, the organization, which represents many of largest companies in the video game industry, never attempted to offer a comment on the bill that that will affect how its influential members practice patent law.
Moving ahead, one can only speculate exactly how the new law may affect innovation and litigation in the games industry. But rest assured, there will be an impact, for better or for worse.
Intellectual property lawyer J. Steven Baughman with law firm Ropes & Gray said, "There are many portions in the America Invents Act for video game companies to consider in their IP strategies, whether offensive or defensive, from the acquisition of patent rights to enforcement, including litigation and validity challenges. Many companies will be sitting down with their legal advisors to plot the best course forward."