The "New" Prior User Rights Defense Under the AIA: What's to Come for the Clean Technology Industry?

Though clean technology space may be a ripe area for testing this new defense, there are some factors a clean technology patent holder or accused infringer may want to consider.

President Obama signed into law the American Invents Act (“AIA”) on September 16, 2011. This has been touted as the most substantial overhaul of U.S. patent law in generations. In an apparent effort to enhance protection available for non-patented inventions and trade secrets, the AIA expanded the prior user rights defense. Generally, the “new” prior user rights defense is a defense to infringement based on one’s prior use of the claimed invention before the patent holder filed for patent protection.

This defense may have a particular impact on the clean technology industry.