Invalidating an issued patent

02-Aug-2014 11:17

The IPR proceedings have proven to be a popular alternative to litigation when attempting to invalidate a patent.

For example, more than one hundred (100) IPR petitions have been filed each of the last four months (April – July 2014).

Many agree that the Supreme Court's current patent-eligibility jurisprudence is confusing and murky.

The Court's legal test for assessing patentable subject matter has proven unpredictable in its application by courts, by patent examiners, and by the administrative review board at the Patent Office (the Patent Trial and Appeal Board).

In 2010, Promega sued Life Technologies Corporation (Life Tech) for allegedly infringing on these patents. Court of Appeals for the Federal Circuit reversed that judgment, holding that the four Promega patents were ultimately invalid but agreeing that Life Tech had infringed the fifth patent and remanding to the district court for a determination of damages.

A jury found in favor of Promega but the district court nevertheless ruled for Life Tech, concluding that Promega had failed to present evidence sufficient to sustain the favorable jury verdict. In the course of its ruling, the Federal Circuit concluded that Life Tech’s supplying of a single, commodity component of a mulit-component invention had exposed Life Tech under federal law to damages liability on worldwide sales.

This panel will consider whether such a radical move is warranted, whether the Supreme Court's patentable subject matter jurisprudence is on the right track, or perhaps whether any problems in patentable subject matter jurisprudence are fixable by the Court or by Congress.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. , which is scheduled for argument before the Supreme Court March 21, 2017.For example, businesses may utilize these post grant proceedings to potentially invalidate troublesome patents when bringing products to the marketplace.These changes were instituted under the America Invents Act (AIA), which included other major changes to the patent system – including a shift from a first-to-invent system to a first-inventor-to-file system. However, there are key differences between the two proceedings that include when the proceedings are available, the time given to the United States Patent and Trademark Office (USPTO) to reach a final determination, and arguments available for invalidity purposes.Both the PGR and the IPR proceedings will be before the Patent Trial and Appeal Board.

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More specifically, the decision of patent validity will be made by a panel of three administrative patent judges.

As a result, the Court of Appeals for the Federal Circuit, trial courts, and the Patent Office have responded by sharply restricting the scope of “patentable subject matter," invalidating issued patents and rejecting patent applications at record rates.

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