Others, such as abolishing the PTAB's technique of construing claims in the broadest possible way, would clearly benefit patent owners, leaving no doubt that the high invalidation rate is fueling the push for those changes. A reversal by the Supreme Court in this case would alter the current claim construction standard, making it harder to invalidate patents and likely lowering the invalidation rate for all three major U. First, while impossible to prove empirically, apocryphal evidence indicates that a large proportion of patents initially challenged at the PTAB were of low quality — precisely the sort of patents these procedures were intended to cull out.Second, the unexpectedly high invalidation rate has emboldened patent challengers to seek PTAB review of higher-quality patents.Numerous changes to IPR, PGR and CBM procedures are currently under consideration.Many appear outcome-neutral: They ostensibly would not favor one side. Supreme Court is set to hear arguments this term regarding the latter change in , to determine the appropriate breadth given to patent claims considered during post-grant proceedings. Regardless of whether reforms are enacted, a number of factors suggest that a decline in the invalidation rate is inevitable and imminent.
This is a question I’ve heard countless times from clients after receiving a cease and desist letter threatening to sue them for patent infringement.
Despite the limited temporal availability, PGRs may challenge a patent's validity based on a broad range of grounds, including unpatentable subject matter, inadequate description, lack of novelty and obviousness.
CBM provides a targeted mechanism for challenging "business method" patents, which to date are the most common patent type asserted by NPEs.
Patent examination is , so only the applicant and the examiner are involved.
The examiner is the gate keeper of the system and many of them do push back hard to force applicants to justify an award of a patent.
An IPR, the most common procedure, may only be instituted on the basis of lack of novelty or obviousness in view of earlier patents or printed publications.