Post-Grant Proceedings As A Freedom-To-Operate Tool

While some may take it as a given that patent owners view America Invents Act post-grant proceedings—inter partes reviews and post-grant reviews—as disadvantageously weakening the U.S. patent system, the attitudes of patent owners may be more nuanced. Many parties, whether themselves patent owners or not, believe that IPRs and PGRs can also strengthen the U.S. patent system by providing less expensive and speedier avenues for rooting out invalid, i.e., unpatentable, patents.

To be sure, many IPR petitions are defensive, filed by petitioners accused of infringing the targets of those IPRs. On the other hand, there are innovative companies that file IPR and/or PGR petitions with an objective of acquiring freedom-to-operate (FTO) in the United States relative to the patent(s) of a third-party patent owner, often itself an innovative company.