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The New America Invents Act - New Inter Partes Review

The New America Invents Act - New Post Patent Review Procedures

On September 16, 2011 President Barack Obama signed into law the Leahy-Smith America Invents Act. This new act makes several changes to procedures for an applicant as well as changes in the application process. The changes began to be implemented on September 16, 2011 with the final rules going into effect on March 19, 2013. Several new review procedures are now available with the new procedures governed via the Patent Trial and Appeal Board including: post-grant review, inter partes review, the transitional post-grant review for covered business method patents, and derivations.

New Post-Review Process - Inter Partes Review

Inter partes review, which is now available, is a new trial proceeding conducted at the Patent Trial and Appeal Board to review the patentability of one or more claims in a patent. However, the review can only be raised under §§ 102 or 103 of the patent law, and only if the prior art consisting of patents or printed publications. Inter partes is Latin for "between the parties." It is a counterpart of the post-grant review and is available for all patents regardless of the priority date. Inter partes review process begins with a third party (a person who is not the owner of the patent) filing a petition after the later of either: (1) 9 months after the grant of the patent or issuance of a reissue patent; or (2) if a post grant review is instituted, the termination of the post grant review. The patent owner may file a preliminary response to the petition. An inter partes review may be instituted upon a showing that there is a reasonable likelihood that the petitioner would prevail with respect to at least one claim challenged. If the proceeding is instituted and not dismissed, a final determination by the Board will be issued within 1 year (extendable for good cause by 6 months). For an inter partes review to be commenced, a third party must establish a reasonable likelihood that they will prevail on at least one claim, as opposed to post-grant review's requirement that at least one challenged claim is more likely than not to be deemed unpatentable.

If you have a idea and want to see if you can patent it, the best place to start is by contacting a patent attorney to discuss the patent process. If you have any questions about this article please send Patent Attorney George Leone an email.

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