Trends from 2 Years of AIA Post-Grant Proceedings
It has now been two years since the America Invents Act created new procedures for third parties to challenge the validity of issued patents in a contested validity trial in the U.S. Patent and Trademark Office before its Patent Trial and Appeal Board. Specifically, on Sept. 15, 2012, the AIA replaced inter partes re-examinations with a set of new proceedings — inter partes review, covered business method patent review and post-grant review. The second year conclusively demonstrated that these post-grant validity trial procedures have radically changed the patent litigation landscape. Such challenges have become ubiquitous and quite successful.
Part 1 of this article will review the statistics regarding IPRs, now that we have two years of data. It will also discuss some of the developments, a number of them unexpected, such as the volume of filings and the use of IPRs in the biotech/pharma space. In Part 2, we will review tips and strategies for success during IPRs, as well as describe the downside risks to filing an IPR petition.