Post-Grant Review v. EPO Oppositions


The Patent Reform Act of 2011 (AIA) is the greatest overhaul of the U.S. patent system since 1952. One striking change is the introduction of post-grant review.

Post-grant review will impact the ability of a third party to challenge a patent to a greater degree than possible with prior administrative procedures. For example, reexamination proceedings were limited to challenges based on publications and applications. Interference proceedings, while not limited to prior art attacks, were limited by who could bring an action, specifically to those with a patent or application with interfering claims. But post-grant review, once in full effect, can be sought by any third-party challenger.

On the surface, post-grant review appears nearly identical to European Patent Office (EPO) opposition practice. This is quite misleading, however, as there are significant substantive and procedural differences that require close attention, even for those familiar with EPO opposition proceedings.

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