The proposed Patent post grant review proceeding would allow the public to appeal the USPTO to cancel claims in a patent within a year of its issue date. And it allows any person who is warned with a patent infringement suit to plea for review within four months of being warned. To prevent wrong use, the review petitioner would be required to make a sufficient first proof of un-patentability; otherwise the petition would be dismissed. If the proof is enough, a fact-finding procedure leading to a hearing by the Board of Patent Adjudication on the merits would follow. It is envisaged that both parties would be obliged to make necessary disclosure of all relevant information, then followed by discovery as permitted by the Board of Patent Adjudication. During the Post Grant Patent review proceeding, the patent owner would have a single opportunity to make a narrowing amendment of the claims challenged.
The Post Grant Patent proceedings would then be conducted by the Board of Patent Appeals and Interferences, renamed after the Board of Patent Adjudication. Then, Administrative Patent Judges of the Board would govern over streamlined hearings, designed to be closed within a year, where direct cases can be presented by documents, and cross-examination allowed where necessary.
The proposed new proceeding will expand the role of the USPTO in improving the integrity of the system of intellectual property. The role of USPTO in Patent validity search is presently limited to ex parte or inter parte re-examination proceedings, which subject patents issued to a repetition of the examination process but not to a completely adversarial determination process, in which patent-ability can be challenged in an action about priority but only for a limited period and only by an applicant whose patent application presents subject.
An advanced process providing for full adjudication by the Board claims would aid to assure that those potentially affected by the economic burden of patents with false claims can get prompt redress. At the same time, the availability of correction option would help assure patentees that the result of such an opposed process could offer them better and assured protection of their inventions.
Moreover, the present proposal would omit inter parte reexamination completely and make introduction of third-party requested reexamination open. This should lessen the burden on the examiners of having to examine complex reexamination proceedings, and thus free examiners to check applications. Further, the Post Grant Patent proposal provides a vehicle wherein the third party develops and presents the proof thus saving a significant amount of resources that it now consumes in making the case for patent-ability.
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