Fast and Furious (Toward Patents): USPTO Issues Final Post-Grant Rules

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On August 14, 2012, the United States Patent and Trademark Office (USPTO) published its final rules for the new post-grant proceedings established last September by the America Invents Act (AIA). The final rules include changes made since the USPTO issued its proposed rules earlier this year. When the final rules take effect on September 16, 2012, it will usher in a new model, as envisioned by the AIA, for challenging patents. These final rules should encourage many wary companies with good prior art to take the plunge and give inter partes review a try.

In particular, the new inter partes review procedure is designed to be faster than inter partes reexamination. The USPTO confirmed that it will abide by the statutory timeline for resolving these cases in one year. Moreover, the new procedure is designed to be more procedurally favorable and cost effective than patent litigation for addressing invalidity based on patents and printed publications. The rules suggest that discovery in inter partes review proceedings will be limited, alleviating fears by some that the new USPTO trial procedures might end up resembling district court litigation in cost and complexity.

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