Since their creation in 2011 by the America Invents Act (AIA), inter partes reviews (IPRs) have become a prominent feature in patent litigants’ strategic playbooks. Accused infringers often prefer to raise invalidity issues in IPR proceedings before the U.S. Patent and Trademark Office (PTO) instead of in district court litigation. An issue that is increasingly being litigated is at one of the intersections between IPRs and district court litigation: motions to stay litigation until the PTO concludes an IPR.
The rise in popularity of IPRs is attributable, at least in part, to the initial success that accused infringers have had, with at least some patent claims being invalidated in about 70 percent of IPRs to date. IPR proceedings are also concluded relatively quickly and economically because of the AIA requiring that IPRs be concluded within 18 months from the filing of an IPR petition (extendable by six months if good cause is shown), and the limited scope (prior art invalidity) of and narrow discovery permitted in IPRs.
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