Inter partes review (IPR) and post-grant review (PGR) “trials” at the U.S. Patent and Trademark Office have the potential to be game-changers in the way patents are challenged in the future. After several attempts at creating USPTO-based proceedings that are efficient and effective, there is much in the new IPR and PGR that lend credence to the notion that Congress finally hit on a combination of pure patent litigation and USPTO procedure that will be attractive to patent challengers. Patent owners are already gearing up to defend against these proceedings, knowing the advantages they present for patent challengers.
That is not, however, to say that IPR/PGR proceedings will be commonly filed and serve to weed out many “bad” patents, along the lines of European opposition practice. Their high cost (as compared to prior USPTO proceedings and EU opposition practice), as well as the strong estoppel that attaches upon the conclusion of the proceedings, will ensure that patent challengers will carefully pick and choose their opportunities to file IPR/PGR petitions.
For significant disputes between patent owners and alleged infringers, however, where litigation is pending, threatened or expected, inter partes review and post-grant review may become the norm. For at least the five reasons below, these proceedings have the potential to change the face of patent litigation forever.