Transformational. Game-changer. Sea-change. Seismic-shift. Whatever word or phrase patent practitioners are using to describe the impact that the America Invents Act (and its creation of the Patent Trial and Appeal Board (PTAB)) has had on patent enforcement and litigation, this much is absolutely true: The PTAB has everyone’s attention—patent practitioners, patent owners, inventors, non-practicing entities and, yes, federal district court judges. Everyone has taken notice.
The PTAB, sanctioned under 35 U.S.C. §6, effective Sept. 16, 2013, was created to “establish another means to administratively challenge the validity of a patent at the U.S. Patent and Trademark Office, USPTO—creating a cost-effective alternative to formal litigation, which will further enhance our patent system.”1 Instead of defending itself in court, for instance, a party accused of patent infringement may petition the USPTO for an inter partes review (IPR) or covered business method review (CBM), which would seek to invalidate the asserted patents based on specific grounds, before the PTAB—and the accused party would concurrently move to stay the district court litigation pending the PTAB proceeding.
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