Originally published September 17, 2009
It may be time to take another look at reexamination proceedings
at the U.S. Patent and Trademark Office (USPTO) if you are facing
patent infringement litigation. Recent changes in federal law, new
commitments by the USPTO, and a growing amount of statistical data
suggest that an administrative challenge to a dubious patent may be
an effective defense strategy and may also be a way to put costly
federal court litigation on hold.
Background
The U.S. patent laws have permitted reexamination of patents for
about 30 years in a proceeding that greatly disadvantaged
challengers known as ex parte reexamination. Under the
ex parte rules, a patent owner or a third party could
bring a new issue of patentability to the attention of the USPTO,
but the proceedings were conducted in secret by the patent owner
and a patent examiner – sometimes even the same examiner
that issued the patent in the first place. Historically, ex
parte reexami
