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ARTICLE · 04 JULY 2019

Return Mail May Make COFC More Attractive To Patent Holders

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In 2011 the Leahy-Smith America Invents Act created three new types of post-issuance proceedings to challenge patent validity: inter partes review,[1] post-grant review[2] and covered

United StatesIntellectual Property
William C. Bergmann
William C. Bergmann
Michael E. Anderson
Michael E. Anderson
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In 2011 the Leahy-Smith America Invents Act created three new types of post-issuance proceedings to challenge patent validity: inter partes review,1 post-grant review2 and covered-business-method review.3 These proceedings have proven to be popular avenues to challenge patent validity among accused infringers and, correspondingly, unpopular among patent holders.

The popularity of these proceedings among accused infringers can be attributed to several factors: (1) the lower burden of proof (preponderance of evidence) needed to prove invalidity, (2) the higher success rates attributed to AIA proceedings, (3) the relative speed of AIA proceedings and (4) the likelihood that related litigation will be stayed.

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