Business method patents exploded in the mid-1990s, leaving companies vulnerable to patents that many felt never should have been issued. The expense of litigation and the high hurdle to invalidating issued patents caused many companies to pay license fees rather than wage pyrrhic legal battles. But the good times for business method patentees may be ending.
A new procedure called the Covered Business Method Review (CBM) was created by the America Invents Act, and it allows companies to challenge issued business method patents in the Patent Office. The procedure is fast, normally concluding in just one year, and allows petitioners to prove invalidity by a mere preponderance of the evidence – not the more stringent clear and convincing evidence standard used in district court. And unlike the more popular inter partes review procedure (IPR), a threatened party can challenge business method patents on additional grounds, including §§ 101 and 112 (but not best mode).
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