Edited by Daniel R. Cahoy and Lynda J. Oswald
Chapter 8: Will the America Invents Act postgrant review improve the quality of patents? A comparison with the European Patent Office opposition
After years of attempts to reform its 60-year-old patent law, in September 2011 the United States enacted the Leahy-Smith America Invents Act (AIA). The law ushers in substantial changes in US patent law and practice. Significant among the changes are a number of new trial proceedings through which third parties may challenge patents at the US Patent and Trademark Office (PTO) once the patent has issued. The AIA law introduced three new or revised post-issuance inter partes proceedings: post-grant review, inter partes review, and a specialized post-grant review for certain business methods. These proceedings address rising concerns over a perceived proliferation of poor quality patents due to substantial increases in the number of patent applications in the US. The primary avenue for testing the validity of patents in the US has been litigation, which is both costly and time-consuming. A primary justification for the new post-issuance proceedings was to provide a faster and less expensive alternative to litigation. Providing an opportunity for third parties to intervene post-issuance is not new in the US system. Since 1981, third parties or the patent owner have been able to request an examination of an already issued patent through an ex parte reexamination.
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