America Invents Act and the Prior Use Defense

Proving Your Right to Continued Use with Global Repository Management

One of the significant changes in the America Invents Act (AIA) is the expanded scope of the ‘prior use’ defense. Before the AIA, the prior use defense only applied to business method patents, but it is now an effective and increasingly important defense in patent disputes centered on any process, machine, or manufacture – if you can prove a valid prior use a year before the filing date or public disclosure of the claim in question.

Why is prior use so important now? For starters, the pace of patent litigation is on a sharp upward trajectory. Between 2008 and 2012 the number of patent cases commenced rose from under 3,000 a year to over 5,000 a year. Any effective defense is worth considering in this environment.

Also bear in mind that the AIA changed from a first-to-invent scheme to first-to-file. If a patent troll files the paperwork first to claim an invention, you could be at risk. Establishing with clear and convincing evidence that you were using the invention over a year before the filing is a very strong point in your favor.

The best evidence of prior use of software inventions is the audit trail provided by your SCM repository. By its nature an SCM repository tracks the birth of a software implementation: the combination of source code, libraries, build scripts, and deployment processes that shows how and when you started using an invention.

But there’s one fly in the ointment – the use of ‘skunk works’ repositories. Some development teams using Git like to stand up informal repositories to work on new ideas or pet projects, only moving the project into the ‘official’ repository when it reaches some stability milestone.

That’s clearly a problem. As we’ve seen from the time frames in the AIA, every day counts when you’re establishing a prior use defense. If you lose the first three months of prototype history because the ‘skunk works’ repository was lost, you may slip past the one year limit for prior use.

Before you try to enforce a policy against these ‘skunk works’ repositories, keep in mind why Git development teams might use them:

  • They’re working at a remote office and the network latency is making their Git operations painfully slow.

  • The official Git repositories are slow due to too much load on the system from a large user base and build automation.

  • The process of requesting an official repository and adding it to the enterprise backup and security schemes is too time consuming.

The solution is a fast and stable enterprise Git service that is easily accessible for any development team. In other words, make it easier for developers to use your secure and highly available Git repositories and they won’t be tempted to set up their own infrastructure.

Git MultiSite provides the enterprise Git solution that fits the bill. With Git MultiSite’s patented replication technology, every development team gets a local Git repository with fast LAN access. Every Git server in the deployment is a fully replicated and writable peer. Slow Git operations are a thing of the past, with most operations being local and commits (pushes) being coordinated very efficiently with other nodes in the deployment. Plus, Git MultiSite’s automated failover and self-healing capabilities mean zero down time.

Git MultiSite and Git Clustering also provide a very scalable solution. Additional Git servers can be added at any time to handle increased load, giving you more confidence to spin up new Git repositories for every pet project that might turn into the next big thing. These new repositories can be deployed at the click of a button in the administration console.

Finally, Git Access Control makes sure that your security policies and permissions are applied consistently at every site, on every server.

Git MultiSite removes the performance and security concerns that normally make you hesitate about providing ‘self-service’ SCM infrastructure, eliminating the need for ‘skunk works’ repositories.

The AIA makes it more important than ever to keep track of every software recipe in your organization. Let Git MultiSite provide the infrastructure you need to protect all of your intellectual property.

 

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