ON THE SURFACE, patent reexaminations seem as inexplicably popular as Paris Hilton. In a reexam the Patent and Trademark Office takes a second look at an issued patent, basically double-checking its work. Reexams are easy to get, but they’re hard to win-less than 20 percent of them end with a patent canceled entirely. Yet the PTO procedure is enjoying a renaissance. In 2005, 583 reexam requests were filed with the PTO, up from 468 in 2004 and 297 in 2001. Why the big embrace when the odds are so bad
For many lawyers, the payoff justifies the peril. Defendants in infringement suits use reexams as a way to kill a patent and sink a potentially long and costly litigation. But reexams aren’t always about a trial win. Filing a reexam request can, by itself, be an effective way to get a case stayed. The delay can shift the momentum of a case, or simply give the defendant time to get its own patents issued-and then use them to negotiate a cross-license.
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