'Prior User' Defense Still Unpopular With Accused Infringers

Law360, New York (September 3, 2015, 10:12 AM EDT) -- When the America Invents Act became effective on Sept. 16, 2011,[1] it significantly expanded the scope of the "prior user rights" defense to patent infringement found in 35 U.S.C. § 273. The pre-AIA version of the defense was rarely used, in part because it was limited to only business method patents. Some thought that the AIA, by broadening Section 273 to make it applicable to any technology, would breathe life into the defense. Now, four years later, research shows that the defense remains unpopular with accused infringers.

This article identifies the handful of decisions and pleadings that have involved the expanded,...

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