In his article on PatentlyO, Dennis Crouch points out an issue caused by the America Invents Act. This issue deals with the patentability of obvious variants of derived inventions. Under pre-AIA rules, an individual who attempted to patent an obvious variant of an invention that has not been attempted to be patented and was not created by the applicant would be rejected as unpatentable under 35 U.S.C. § 103 in view of 35 U.S.C. § 102(f), more commonly known as a 102(f)/103 rejection (as formulated by the Federal Circuit in OddzOn Products, Inc. v. Just Toys, Inc.).

The AIA eliminates this rejection with the deletion of section 102(f), which said the applicant is not entitled to a patent on an invention he/she did not invent. While some say this type of rejection will in fact no longer be available when the first-inventor-to-file provisions of the AIA become effective on March 16, 2013, the USPTO argues the requirement in 35 U.S.C. § 101 that a patent only be awarded to “[w]hoever invents or discovers” will still prohibit the granting of a patent on an obvious variant of another’s unpatented invention.