We address these questions empirically by analyzing the effective dates of patents and patent applications currently being litigated or pursued. Our analysis resoundingly confirms that both regimes matter and that the pre-AIA prior art regime appears likely to continue to be relevant for much of the next decade. But how much it matters depends. Patent lawsuits overwhelmingly continue to feature pre-AIA patents – a surprising 90% of the patent litigations initiated in 2020 included a patent with an effective filing date before March 16, 2013. But the inverse is true of patent prosecution – at least 94% of applications currently pending before the USPTO in 2021, we estimate, are governed by the AIA prior art rules. In the paragraphs below, we explain our methods and approach and how pre- and post-AIA law are likely to both remain important for some time but why the distinction doesn’t necessarily matter in the vast majority of cases.
Patently-O Patent Law Journal