On September 16, 2021, Justin Oliver was quoted in IPWatchdog on the impact of the America Invents Act (AIA) in recognition of the law’s tenth anniversary. The following is an excerpt:
While the AIA introduced numerous changes to patent law, the creation of post-grant proceedings (e.g., IPRs) before the PTAB proved significant. Congress intended for PTAB proceedings to provide more meaningful alternatives to litigation, for purposes of challenging patentability, as compared to prior administrative options. From that perspective, the AIA provides its intended impact. Unlike prior options, PTAB proceedings have become routine responses to litigations, often fully resolving the disputes.
Patent owners and challengers often disagree on whether the impact represents a positive or negative for patent rights. Notably, while the PTAB and district courts exhibit similar statistical tendencies with respect to anticipation challenges, the PTAB has proven to be more receptive to obviousness challenges. Naturally, views differ as to the more proper attitude toward obviousness.
Recently, the impact of PTAB proceedings as a litigation alternative has evolved. Specifically, the intersection between the significant percentage of patent cases filed in “rocket dockets” and the PTAB’s stance regarding potentially denying review when the district court will reach a trial before the PTAB’s final decision has led to discretionary denials. The significance (and further evolution) of this development will continue to be a trending storyline.
Click here to access the article.