There are some new and intricate questions about claims and defenses relating to infringement of patents based on the AIA. One of the biggest changes is the availability of a new defense relating to continuous commercial use of a patented product or invention.

This particular change allows a commercial manufacturer mostly to avoid having to face patent infringement liability from a new comer that makes a modest improvement on a patented product or process without having to overcome an obviousness rejection. This new defense allows for an additional means for a small or large manufacturer to avoid patent trolls.

In a typical patent lawsuit, one of the largest challenges facing defendants is determining the nature of the claimed invention and the commercial embodiment of the infringing device or product.  Once, the lawsuit is initiated the biggest mistake a defendant is overlooking the availability of competing or substitute devices or products.  Often times a competing or substitute product or device will be able demonstrate anticipating, obviousness, or prior commercial use.

Therefore, the AIA has actually provided a third category of prior commercial use that is narrower than the public use exemption.  Courts and practitioners will still have to struggle with determining how to apply and interpret the “prior commercial use.”