Patent Reform: The Process Is New, But Is It Improved?

In 2011, the sweeping patent reform legislation sought to reduce litigation by creating a new process for challenging patent validity. But the new process will look more like litigation than the old process, says Matthew Kreeger, chair of Morrison & Foerster's Patent Interferences Group.

Under the old opposition proceedings, challenges were decided by U.S. Patent & Trademark Office patent examiners based on the parties' briefs. The new "post-grant reviews" will  be heard by the new Patent Trial & Appeal Board. Three-judge panels will oversee hearings, motions, even limited discovery and depositions. Once the PTAB decides, the parties cannot raise  the claims in district court.