The U.S. Patent and Trademark Office has issued a draft of rules for the first-to-file provisions found in the America Invents Act of 2011 (AIA), and among the more interesting items found in the draft is a provision stating that if an inventor wishes to discredit a publication addressing prior art by someone other than the inventor or inventors, the patent applicant will have to file an affidavit that demonstrates that the patent applied for is virtually identical to the article mentioned in the applicant's prior disclosure.

The July 20 hearing at the Court of Appeals for the Federal Circuit addressing the Myriad case did not last a terribly long time, but there were a few object lessons to take away. We last visited this situation shortly after the Supreme Court decision in Prometheus v Mayo, when I opined that there might not be much reason to hit the panic button, and I have to say I didn’t hear much on July 20 to change my mind. But who can say for certain? After all, who’d have guessed at the 9-0 outcome at the Supreme Court (a.k.a.,...