Post-Grant Proceedings Flashcards
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Read the first 7 Post-Grant Proceedings flashcards as text
What is the deadline for filing a petition for Post-Grant Review (PGR) of a patent?
Answer: Within 9 months of the patent grant or reissuance
Under 35 U.S.C. § 321, a PGR petition must be filed no later than 9 months after the date of the grant or reissuance of the patent.
Who may file a request for Ex Parte Reexamination under 35 U.S.C. § 302?
Answer: Any person, including the patent owner, third parties, and the USPTO Director
Any person—including the patent owner, third parties, or the USPTO Director on their own initiative—may file a request for ex parte reexamination.
What threshold must the USPTO find to institute Inter Partes Review (IPR)?
Answer: A reasonable likelihood that the petitioner would prevail on at least one challenged claim
Under 35 U.S.C. § 314(a), the USPTO may not institute IPR unless it determines there is a reasonable likelihood that the petitioner would prevail on at least one challenged claim.
Which of the following grounds CANNOT be raised in an Inter Partes Review (IPR) proceeding?
Answer: Prior public use or prior sale under § 102
IPR is limited to challenges based on prior art consisting of patents or printed publications under §§ 102 and 103; prior public use, prior sale, and other non-documentary § 102 grounds cannot be raised.
Within what time frame must the USPTO issue a final written decision after instituting an IPR?
Answer: 12 months from institution
Under 35 U.S.C. § 316(a)(11), the USPTO must issue a final written decision within 12 months of institution, with a possible 6-month extension for good cause.
Under 35 U.S.C. § 315(b), an IPR petition may not be filed more than one year after the petitioner was served with what?
Answer: A complaint alleging infringement of the patent in civil action
Section 315(b) bars IPR petitions filed more than one year after the petitioner (or a real party in interest or privy) was served with a complaint alleging infringement of the challenged patent.
Which post-grant proceeding was created by the Leahy-Smith America Invents Act (AIA) to replace Inter Partes Reexamination?
Answer: Inter Partes Review (IPR)
The AIA replaced inter partes reexamination with Inter Partes Review (IPR), which provides a trial-like proceeding before the Patent Trial and Appeal Board (PTAB) and took effect on September 16, 2012.
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