Inter Partes Reexamination Reinvented? Intellectual Property Quarterly Newsletter, Spring 2011

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Although inter partes reexamination has become an increasingly popular tool for challenging patent validity, the process appears to suffer from growing pains. The PTO is charged with handling reexaminations with “special dispatch.” Under the current protocol, however, the average pendency is now more than three years. A typical inter partes reexamination involves two Office actions, two corresponding rounds of third party requester and patent owner responses, and, not infrequently, a flurry of petitions. In what can be perceived as an attempt to streamline the current process, the Senate and the House have proposed two new procedures in the “America Invents Act”: a post-grant review for newly filed patents and an inter partes review to replace inter partes reexamination.

The proposals appears to be a substantial overhaul of inter partes reexamination; few aspects of the original procedure remain intact. For example, the proposed inter partes review no longer mimics standard prosecution, which is driven by a patent examiner (as part of a three-member Central Reexamination Unit panel) issuing office actions and deciding the merits. Instead, the proposed inter partes review would be decided by a newly enacted Patent Trial and Appeal Board (PTAB), with the option of an oral hearing. The Senate and the House have also proposed a one year time limit for the PTAB to reach a final decision.

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Morrison & Foerster LLP on:

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