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Patent Reform: The Process Is New, But Is It Improved?

In 2011, the sweeping patent reform legislation sought to reduce litigation by creating a new process for challenging patent validity. But the new process will look more like litigation than the old process, says Matthew Kreeger, chair of Morrison & Foerster’s Patent Interferences Group.

Under the old opposition proceedings, challenges were decided by U.S. Patent & Trademark Office patent examiners based on the parties’ briefs. The new “post-grant reviews” will  be heard by the new Patent Trial & Appeal Board. Three-judge panels will oversee hearings, motions, even limited discovery and depositions. Once the PTAB decides, the parties cannot raise  the claims in district court.

The new process will also allow for challenges based on a much wider range of issues than the old USPTO process, says Morrison & Foerster partner Peng Chen. Limited reviews through the new system will be available starting in mid-September. But the new process only takes full effect under the new first-to-file system, which debuts in March.

“When the dust finally settles, I think we’ll end up with a more efficient system,” Kreeger says.

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