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66 Vand. L. Rev. En Banc 1 (2013)

handle is hein.journals/valewenb66 and id is 1 raw text is: VANDERBILT LAW REVIEW EN BANC VOLUME 66 MAY 2013 Patent Prior User Rights: What's the Fuss? Jacob Neu* I. INTRODUCTION When President Barack Obama signed into law the America Invents Act (AIA), the most extensive American patent law reform in almost sixty years, most commentary focused on the historic shift from a first-to-invent to a first-to-file patent system. Another change, however, also seemingly represents a historic shift: the expansion of prior user rights to all patents. Prior to the America Invents Act, this defense was limited to business method patents,1 but under the new statute, the prior use defense may be asserted against any patent.2 The prior use defense allows a party who commercially used a patented invention for at least one year prior to the patent's filing to continue using that invention without infringing the patent.3 In practice, this means that if a party decides to keep its invention secret Jacob Neu, Patent Attorney, Bradley Arant Boult Cummings, LLP. I would like to thank Prof Sean Seymore of Vanderbilt University Law School for his comments on an early draft, and Vanderbilt En Banc for their edits and comments. In memory of my mother, Amy. 1. 35 USC § 273 (2006) (amended 2011). 2. Leahy-Smith America Invents Act (AIA) § 5, Pub. L. No. 112-29, 125 Stat. 284 (2011) (codified at 35 USC § 273). 3. AIA § 5, 35 U.S.C. § 273 (Supp. 2011).

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