Vol 1: Theory Vol 2: Analytical Methods
Edited by Ben Depoorter, Peter Menell and David Schwartz
The post-grant administrative review of patent validity set up at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) by the America Invents Act of 2011 has transformed the relationship between Article III patent litigation and the administrative state. This chapter reviews scholarly literature that has made the case for such review and presents basic data on the functioning of several predecessors to the PTAB. It also reviews the empirical literature on the PTAB’s functioning, focusing on literature that falls into one of four categories: (1) basic descriptive statistics; (2) the intersection with district court litigation, including across different technology areas and different courts; (3) the impact of the PTAB on non-practicing entities; and (4) comparisons of patent and patent-examination characteristics between patents challenged at the PTAB and a matched sample that was not challenged. The chapter concludes by setting forth a research agenda
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