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The New America Invents Act - New Post-Grant Review Process

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. One such change is the new post-review process. Several new review procedures are now available and will be 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 - Post-grant Review

Post-grant review 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 on any ground that could be raised under § 282(b)(2) or (3) of the patent law. The post- grant review process begins with a third party filing a petition up to 9 months after the grant of the patent or issuance of a reissued patent. It can be filed based on any ground of rejection. However, this new rule only applies to patents filed after those having benefit of priority (effective filing date) of March 16, 2013 or later. A post grant review may be instituted upon a showing that it is more likely than not that at least one claim challenged is unpatentable. The petitioner has the burden of proving a proposition of unpatentability by a preponderance of the evidence. The patent owner may file a preliminary response to the petition which may include why there should be no post-grant review. 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). If a post-grant review is granted, the patent owner then has an opportunity to file a response to why the challenged claim should be allowed. One type of a response points out that the petitioner has failed to meet all the filing requirements.

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