A look back on 2013 reveals that one reform enacted under the America Invents Act — patent office litigation — has perhaps had the most immediate and dramatic impact. While many predicted that inter partes review (IPR) proceedings would change the face of patent litigation, few could have predicted the intense momentum and widespread acceptance these proceedings have gained in such a short time. Indeed, as of Dec. 5, 2013, 723 IPR petitions have been filed, averaging more than 20 petitions per week.
IPR proceedings have, of course, maintained many of the advantages over district court litigation that were found in re-examination proceedings, such as lower cost (often by an order of magnitude), lower burden of proof (preponderance of the evidence versus clear and convincing evidence), and a potentially broader claim construction (broadest reasonable interpretation versus ordinary and customary meaning).
This article focuses on the advantages, both expected and unexpected, that are unique to inter partes review practice (and likely to post-grant review (PGR)). Overall, patent challengers are flocking to these proceedings. Discussed below are the six key reasons why IPR proceedings have become so popular.