The impact of inter partes review on patent litigation

The America Invents Act (AIA) created a new post-grant review proceeding in the USPTO: the inter partes review or IPR. On 16 September, 2012, the USPTO stopped accepting petitions for inter partes re-examination and the IPR took its place.

IPR, like inter partes re-examination before it, allows the USPTO to reconsider the patentability of a patent. There are some key differences between an IPR and prior post-grant proceedings. For an IPR to be instituted, the USPTO must conclude there is ‘a reasonable likelihood that the petitioner would prevail’ in at least one of the claims; a more stringent standard than the old ‘significant new question of patentability’.

An IPR is conducted before the new USPTO Patent Trial and Appeal Board (PTAB), not an examiner, eliminating one layer of proceedings. Invalidity need only be proven by preponderance of the evidence, a lower standard than the federal court ‘clear and convincing’ standard…

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