As part of the Leahy-Smith America Invents Act (AIA), 35 U.S.C. §100, et seq., Congress enacted several changes to U.S. patent laws that were aimed at stemming the perceived tide of meritless and abusive patent infringement litigation. Almost five years later, the most impactful element of the AIA has arguably been the creation of inter partes review (IPR), an administrative proceeding before the Patent Trial and Appeal Board (the board) of the U.S. Patent and Trademark Office (USPTO) that allows parties to challenge the validity of issued patents. Under the IPR procedure, a petitioner—typically a party accused of infringing a patent—asks a panel of three judges of the board to determine whether the elements of a patented invention are anticipated (i.e., disclosed in a single prior art publication) or obvious in view of multiple prior art publications.
If the judges agree, the challenged patent claims will be invalidated. IPR proceedings have rapidly grown in popularity since September 2012 due to the (relatively) low costs and (relatively) quick pace of the proceedings, as well as the high quality of the board’s judges. In fiscal year 2015, for example, 1,897 petitions for IPR were filed.
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