One aspect of the current patent reform debate is whether the CREATE Act will be preserved or modified. Briefly, the CREATE Act seeks to promote joint research activities and allows, in essence, one to exclude as prior art selected patent filings from other parties to a joint research agreement. The statute requires that the patent application be amended in a way to reflect the CREATE Act, so one can monitor patents and published applications for use of the CREATE Act.
The current version of H.R. 1249 purports to preserve in full the specifics and the intentions of the CREATE Act. For example, the House Committee Notes refer to this issue on pages 4 and 43.
We briefly checked nanotech class 977 patents and patent publications for use of the CREATE Act. For the granted patents, only seven 977 patents refer to joint research agreements and list the parties to the agreement. For nanotech class 977 patent publications, only 11 patent publications refer to joint research agreements and refer to the parties of the agreement. Hence, while the CREATE Act may be important, statistically, the CREATE act is not being invoked very frequently, at least in the nanotech space. One point noted is that many of the nanotech 977 patent documents resorting to the CREATE Act involve parties located outside the United States.