4. Inter Partes Review (new proceeding) –Startin
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Posted On: 06/02/2017 5:49:52 PM
4. Inter Partes Review (new proceeding) –Starting September 16, 2012,inter partes reviews will replace inter partes reexaminations. The new proceeding will be gradually implemented so as to not overwhelm the USPTO. As such, there will be a limit of 281 proceedings, per year, until 2016. This proceeding, which will take place in front of the PTAB, will be available for any patent issued, before, on, or after September 16, 2012. An inter partes review shares many features with a PGR, with two important distinctions.
First, an inter partes review can only be requested after the 9-month window following the issue date of the patent. This prohibition effectively prohibits the simultaneous use of PGR with this proceeding. The request must also be filed within one year after service of an infringement complaint or before the third party requester filed a court action alleging invalidity. This provision is designed to avoid wasting USPTO resources on a patent that is relatively further along in a parallel litigation proceeding.
Second, the new proceeding can only be based on patents and printed publications. While this rule limits their scope, it also limits the estoppel affect. In other words, while the accused infringer, who had previously requested an inter partes review, may not raise during litigation an invalidity defense based on patents and printed publications, the accused infringer can still challenge the novelty and non-obviousness of the invention based on evidence of public use or sale, and based on an insufficient disclosure or patentability ineligibility.
First, an inter partes review can only be requested after the 9-month window following the issue date of the patent. This prohibition effectively prohibits the simultaneous use of PGR with this proceeding. The request must also be filed within one year after service of an infringement complaint or before the third party requester filed a court action alleging invalidity. This provision is designed to avoid wasting USPTO resources on a patent that is relatively further along in a parallel litigation proceeding.
Second, the new proceeding can only be based on patents and printed publications. While this rule limits their scope, it also limits the estoppel affect. In other words, while the accused infringer, who had previously requested an inter partes review, may not raise during litigation an invalidity defense based on patents and printed publications, the accused infringer can still challenge the novelty and non-obviousness of the invention based on evidence of public use or sale, and based on an insufficient disclosure or patentability ineligibility.
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