Five Considerations When Choosing How to Challenge Patent Validity


Inter partes review (IPR) is quickly becoming a popular choice for challenging the validity of a patent. The America Invents Act (AIA) established IPR as a mechanism for challenging patent validity through an evidentiary proceeding before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO). Under the right circumstances, an IPR may be a viable option for a party seeking to challenge an issued patent. Other options include traditional ex parte reexamination and district court litigation. This article discusses five areas to consider when choosing the best option in a particular case.


A third party requesting ex parte reexamination of a patent will have no real discovery opportunities. For example, ex parte reexamination does not allow a third party requestor to depose experts or other parties from whom a patent owner may submit declarations in support of patentability.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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