Benjamin Appelbaum, Attorney at Law

Patent holders criticize new patent challenge review process

Intellectual property plays a significant role in the economy of New Jersey, and patent holders have a financial interest in defending their ideas. The Inter Partes Review system developed five years ago by the America Invents Act was intended to be an alternative to lengthy litigation when someone challenged the validity of a patent. The process gave the Patent Trial and Appeals Board the ability to settle a patent question. Critics, including many patent holders, have concerns about the fairness and consistency of the process.

The ease of launching an appeals board review has increased the frequency with which patent owners have to defend their patents that have already been granted by the U.S. Patent and Trademark Office. Accusations of parties using multiple challenges against the same patent, called gang tacklings, have emerged. This tactic could wear down a patent owner who does not have the deep pockets to continually protect the intellectual property.

Critics of the process also claim that the review system disfavors the patent holder. The appeals board does not assess a patent according to the same standards as a court or the patent office that issued the credential. Others have questioned the authority of the review board. The Supreme Court of the United States currently has a pending case that asserts that a non-Article III court cannot revoke a patent.

A person or company that needs to protect patent ownership could benefit from the services of an attorney familiar with intellectual property litigation. An attorney could prepare a notice that explains the patent owner's rights and provides details to the opposing party about the nature of the infringement. Damages attributed to the unauthorized use of a patent or the legal cost of defending a challenge might be recovered through attorney-led negotiations or a trial.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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