Intellectual property (IP) laws, or legislation, are continually face novel challenges brought about by social media, particularly with regard to copyright. Social media poses diverse risks to IP rights owing to its marked potential for transmitting copyrighted content virally. In the US, there are various pieces of legislation regarding the management of social media resources with respect to the rights (Daim, 2014; Halbert, 2014). This essay focuses on one of the pieces, the Leahy–Smith AIA (America Invents Act).
The AIA is a federal legislation enacted in 2011 and its key provisions became operational in either September 2012 or March 2013. The AIA represents a pronounced change to the country’s patent system, which has remained largely unchanged from the early 1950s. The AIA has considerable similarities with the Patent Reform Act that the Senate proposed in 2009. It was sponsored by Representative Lamar Smith along with Senator Patrick Leahy. Its overall effect is switching the patent system to a structured first-inventor-to-file (FIF) patent system from the traditional first-to-invent (FI) patent system from March 2013 (Daim, 2014; Halbert, 2014). As well, it gets rid of interference proceedings as well as provides for post-grant legal challenges, or opposition.
Besides, the AIA expanded the classic prior art’s definition, which is widely used in establishing patentability. Prior art, as well as actions, which block patentability within the AIA’s meaning, include public disclosures such as specific public filing dates, sales, use, and publications. Others include third party patent applications on the same works and specific inventor publications. As well, the AIA significantly expanded the art, including foreign sale offers as well as public uses (Daim, 2014; Halbert, 2014). If an applicant does not publish own invention before filing he or she does not enjoy any grace period.
The AIA has markedly transformed the traditional patent law regarding social media such as Twitter. In particular, those keen on protecting own innovations, as well as inventions, ought to be wary of what they post, or publish, on Twitter or other social media. That is because under the AIA, the prior art’s definition has expanded so significantly that particular disclosures that one may make on Twitter or other social media may be deemed prior art against them when they file for specific patent rights.
Besides, with the switching of the patent system from FI to FIF, comprehensive disclosures may give room to entities to file for the same rights on inventions before the owners of the inventions do the filing (David & Halbert, 2015; ; Halbert, 2014). Additionally, even though the AIA has simplified the pathway towards the invalidation of commercial method patents, business should remain cautious of claims of patent infringement stemming from particular processes or techniques that they implement on Twitter or other social media (Ossian, 2013).
Social media might facilitate IP theft in various ways. First, it might give room for the leakage of specific confidential information related to IP filings to the disadvantage of innovators and inventors. Second, social media may facilitate improper IP distribution. For instance, staff members posting information on ongoing projects on social media can create room for IP theft by business rivals. How can businesses bolster their systems for responding to the IP-related risks posed by social media? Given that such risks often give rise to lawsuits against businesses, every business should consider taking up cyber-liability insurance to safeguard their interests from the costs that may stem from IP loss lawsuits.
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