April 6, 2012
Authored by Patrick J. Coyne
March 16, 2013, may seem like it is a long time from now, and March 16, 2034, is even further. But it is closer than you think . . . and big changes are afoot. The America Invents Act is a game-changer. From altering who can apply for a patent, the definition of prior art, and the ways to challenge a patent or an application, it is the most sweeping change in U.S. patent law in sixty years. It will take decades to implement. You have some time, but not as much as you think.
Are the strategies that you are using now to protect your rights going to be effective under the new law? This paper offers for your consideration a dozen potential strategies that may help you use the new patent system more effectively.
One of the drivers for the new Patent Act was the constant drumbeat, for the past dozen years, about poor-quality patents being issued by the Patent and Trademark Office. Beginning in the mid-1990s, with technology driving the U.S. economy to dizzying heights, some segments of the public perceived that the PTO was issuing too many "bad"patents. In addition to wasting applicants' time and money, this cost infringement defendants even more in litigation. Congress agreed and acted.
Ironically, the AIA does not tackle the problem of poor-quality patents, at least not directly. This might best be accomplished by ensuring that only high-quality patents get issued in the first place.
Additional resources might have been devoted to the initial examination of applications. The AIA does not do this. Nor does it take steps to curtail the number of continuation applications, which contribute substantially to the PTO's backlog.
Only one of the more modest changes in the AIA—preissuance submission—focuses on the original application process. Instead, the AIA attempts to strengthen the patent system by making it easier to challenge bad patents and by simplifying enforcement proceedings through four basic changes. Although this approach could be viewed skeptically by some, the speed and variety of these new techniques are bound to have a positive impact on the patent system in the long term.
The AIA makes four fundamental changes to U.S. patent law. First, it changes the present "first-to-invent"system into a "first-inventor-to-file"system, bringing U.S. law into closer alignment with international patent systems. It also changes the definition of prior art, hopefully making it more transparent and more predictable.
Second, the AIA adds four new types of PTO procedures that can be used to challenge, or strengthen, a patent. It will be harder to institute the new challenge proceedings than it is to institute the old reexamination proceedings. The AIA also provides for "supplemental examination"to enable the PTO to consider information it did not consider when it initially granted a patent.
Third, the AIA expands certain defenses and eliminates or weakens other defenses to a patent-infringement claim to simplify and streamline enforcement litigation.
Fourth, the AIA includes several miscellaneous provisions that specify that patents are no longer available for certain types of controversial subject matter and gives the PTO greater control over its own operations.
These changes are summarized and explained in a companion article, Patrick J. Coyne, The America Invents Act: How Does It Strengthen the Patent System?, 82 Pat. Trademark & Copyright J. (BNA) 901 (Oct. 28, 2011). These points will not be repeated here. Rather, this article focuses on how to use these provisions most effectively.
Numerous papers and presentations have been produced describing the AIA. But how do you use it to your best advantage? This is the most important question.
This paper will offer a dozen potential strategies for your consideration. These strategies have been grouped into four basic categories. First, we will discuss filing strategies—yours and your competitors'. This section addresses the long transition period before the AIA is fully implemented.
Second, we will address several existing practices—oldies but goodies—that remain vital.
Third, in the "Best Defense Is a Good Offense"section, we will turn to several new procedures for challenging bad patents and explore their advantages and disadvantages. Finally, we will address two remaining issues, both of which may present unusual challenges and risks.
Old Definition |
New Definition |
Broader or Narrower? |
Known or used by others in this country. § 102(a) |
Patented, printed publication, in public use, on sale, or otherwise available to the public. § 102(a)(1) |
Broader: Public use, on sale, and otherwise available to the public, anywhere. |
Patented or described in a printed publication anywhere, or in public use or on sale in this country. § 102(b) |
||
The inventor abandoned his invention. § 102(c) |
Deleted |
Narrower: Eliminates this potential source of prior art. |
Application for patent was filed anywhere more than a year before it was filed in the United States. § 102(d) |
Described in a patent or application filed by another before effective filing date. § 102(a)(2) |
Broader: Foreign application no longer needs to designate the "US"under the PCT to be prior art. |
Described in prior patents or published applications of others. § 102(e) |
||
Derived from another. § 102(f) |
Deleted |
Narrower: Derivation proceedings are available but are limited to certain conditions. |
Prior invention. § 102(g) |
Deleted |
Narrower: Eliminates prior invention as prior art. |
Strategy: |
Pros |
Cons |
File early and often; andConsider filing "mixed"cases.
|
More predictability under the old definition of prior art; Old definition of prior art is arguably narrower; and Priority of invention controls. |
New definition is narrower in certain respects: specifically, forfeiture and jointly owned inventions. |
Strategy: |
Pros |
Cons |
Accelerated Examination |
Fast; and Limited number of cases are accepted. |
Expensive; and Examination may not be as rigorous. |
Strategy: |
Pros |
Cons |
Preissuance Submission |
Inexpensive to file; May now explain the relevance of the art; and Requires minimal effort. |
May be expensive to maintain an effective monitoring system in order to timely file; No ability to participate after submission; and If reference was considered and patent issues, validity is "hardened." |
Know what your competitors and patentees who may be seeking to enforce patents against you are doing.
In addition to the fees for accelerated examination, the PTO has exercised its newfound fee-setting authority with respect to preissuance submissions, reexamination, derivation, post-grant review, business method review, inter partes review, and supplemental examination proceedings.
Historically, the PTO's fees have been extremely low and did not approach levels necessary for the agency to recover the costs of rendering these services. The proposed fee scale is substantially higher, triggering a hue and cry among the bar.
Nonetheless, the proposed fee levels do not appear to this writer to be unreasonable and appear to be tailored to the level of effort that the PTO anticipates incurring in each proceeding. Although the cost of preissuance submissions is relatively modest at about $3,400 per submission, the cost of ex parte reexamination, derivation, post-grant review, and inter partes review proceedings each are in the neighborhood of $18,000 to $20,000.
Strategy: Inter Partes Reexamination:Catch It Before It Fades Away. Inter partes reexamination will no longer be available after Sept. 16,2012. It will become inter partes review. The standard for granting inter partes reexamination was changed on Sept. 26, 2011, from a "substantial new question of patentability"to a "reasonable likelihood that at least one claim of the patent is invalid."Formerly, the rate for granting ex parte reexamination requests was about 95 percent.
Although only a limited sample of one quarter is available, this rate has dropped during the period from October to December 2012 to about 85 percent. Under the new rules, effective September 16, 2012, the fees for inter partes reexamination, pending implementation of inter partes review, are substantial.
Strategy: |
Pros |
Cons |
Inter Partes Reexamination |
Relatively high grant rate (85 percent), even under the current standard of reasonable likelihood that at least one claim is invalid; and Much higher success rate by the attacker than in ex parte reexamination (about six times higher). |
Eliminated: effective September 16, 2012, in favor of inter partes review. |
The primary advantage of inter partes reexamination has been that the challenger has a much higher rate of success in forcing the patentee to modify the claims (triggering intervening rights) or in having the claims rejected outright than in ex parte reexamination. The rate for successful inter partes reexamination is about six times more favorable to the challenger than in ex parte proceedings.
Strategy: |
Pros |
Cons |
Ex Parte Reexamination |
Ex parte—no adverse party; More modest expense than inter partes reexamination; Higher success rate for the patentee than inter partes reexamination; and Requires only a substantial new question of patentability. |
Public—challengers can observe; Not immunized against later challenge (inter partes review5); Substantial delay in concluding proceeding (about two years); and Substantial PTO fees. |
Strategy: |
Pros |
Cons |
Reissue |
Ex parte—no adverse party; May broaden, if filed within two years of issue; and May correct errors that may otherwise be problematic in an infringement action. |
Public—challengers can observe; and May trigger third-party intervening rights, if the claims are modified. |
The patentee may be able to use reissue to weaken or defeat a challenger's ability to secure inter partes or post-grant review of a patent. By addressing in reissue the bases that would otherwise support inter partes review or post-grant review, the patentee may preclude these additional challenges.
Strategy: Recordkeeping. Going to a "first-inventor-to-file" system means inventorship no longer matters, right? Great, I can get rid of those tedious inventors' notebooks, right? They were always a hassle and no one fills them out anyway, right? Wrong.
If anything, there are as many, if not more, reasons now to keep good records as there were under the old system. Records were formerly kept in order to prove prior invention. Although they will no longer be needed for this purpose, there are many good reasons to either continue an effective recordkeeping program or to improve a flagging program to state-of-the-art levels.
Strategy: |
Pros |
Cons |
State-of-the-Art Recordkeeping |
Inexpensive; and Provide proof needed for derivation, prior use, and on-sale defenses. |
Modest expense of maintaining records. |
Under the AIA, the inventor's records are still useful. If a derivation proceeding is filed, applicants may be required to prove conception, just as they were under the old rules. Communication of the invention and unauthorized filing are elements of a derivation claim, and notebook records may be useful here as well.
The AIA strengthens substantially the prior-use defense. Records may be critical to dating the prior use as well as filling in the technical details of the prior use.
Further, the on-sale defense has been expanded to cover not only activities in the United States but being on sale anywhere. Reliable contemporaneous records will be essential to prove this defense.
The AIA includes several new procedures to challenge patents. These include derivation proceedings, post-grant review, business method review, and inter partes review.
Strategy: File Derivation Proceedings. The interference system is being eliminated. Interference practice will no longer be available for patents and applications having an effective filing date on or after March 16, 2013. Instead, these "first-inventor-to-file"applications will be subject to derivation proceedings. Although interference proceedings are still available for applications and patents claiming priority before March 16, 2013, the Director has increased discretion whether to institute additional interference proceedings. With good reason.
Interference practice became cumbersome and expensive by virtue of providing full discovery and a two-stage process of first determining patentability and then determining priority. These proceedings were based on a "count,"simulating the alleged common subject matter.
Strategy: |
Pros |
Cons |
File Derivation Proceedings |
Much less complex and expensive than an interference; Streamlined procedures: limited discovery, submission of evidence, and hearing; and Reduced expense relative to interference practice. |
Much more limited availability than interference; Requires proof of: (1) prior conception, (2) communication, and (3) unauthorized filing; Limited window—within one year of publication of claim; Requires a pending application and can be filed only against a prior-filed application or patent; and Substantial PTO fees. |
Derivation is not the same thing as prior invention. And a derivation proceeding is not the same as an interference proceeding.
They do have one common element—conception. There are also substantial differences. In addition to conception, communication and unauthorized filing are required for derivation. These additional elements, however, are relatively simple.
In contrast, prior invention requires proof of conception, reduction to practice, and, possibly, diligence, as well as proof that the invention has not been abandoned, suppressed, or concealed. Experience has shown that this additional proof of prior invention is often difficult, time-consuming, and very expensive.
Procedurally, the new derivation proceeding is far more limited than the old interference practice. Discovery is more limited. Whereas interference practice evolved into permitting full discovery and extensive substantive motions practice, at the expense of time and resources to both the parties and the Board of Patent Appeals and Interferences, derivation proceedings will involve only limited discovery and a more streamlined process.
All of the new trial-type proceedings (derivation, post-grant review, and inter partes review) will be subject to the board's rules of practice. These rules limit discovery to the relevant facts at issue and provide for additional discovery only for good cause shown.
Perhaps more importantly, rather than a full civil action-type proceeding with live witness testimony, the default provisions are for a more constrained proceeding, more similar to trademark cancellation practice. Discovery is more focused. Direct testimony is by declaration and cross-examination is by deposition transcript. All evidence is submitted in writing and the hearing is essentially an oral argument summarizing the evidence.
Given the stringent requirements to conclude the trial-type proceedings within one year, absent an extension for good cause shown, the PTO appears to have defaulted, at least initially, to a system that it is confident will permit it to conclude the proceedings within this one-year time frame.
In addition to a more streamlined process than interference practice, the issues in a derivation proceeding are more limited. The request may be filed only if the requestor has a pending application and it can only be filed against an earlier-filed application or patent.
Further, it must be filed within one year of the first publication of a claim to an invention that is the same or substantially the same. Thus, the number of derivation proceedings should be far lower than the number of interference proceedings.
The AIA leaves substantial discretion with the director of the PTO whether or not to institute these derivation proceedings, and the director's decision is final and not appealable. In addition, the director may determine whether to continue or dismiss any interferences that were commenced up to a year after the passage of the AIA.
Thus, continued reliance on interference practice, and even on the new derivation proceedings, is a narrow option that will get progressively narrower over time.
Threshold Varies with Type of Proceeding
Strategy: Post-grant Review. The second new procedure, post-grant review, allows a challenge within nine months of the patent grant.
Unlike existing reexamination and reissue proceedings, which are limited to patents and printed publications, post-grant review can be based on any ground for invalidity of a patent under the AIA: prior art; lack of utility; improper subject matter; as well as lack of written description and enablement, and indefiniteness. As such, although it may be harder to institute, it is far more dangerous to the patentee due to the scope of possible issues and the breadth of evidence that may be relied upon.
Post-grant review can be based on prior art that is not permitted as a basis for ex parte or inter partes reexamination. Nonetheless, a post-grant review challenge cannot be based on best mode or inventorship, both of which have been eliminated as defenses.
Strategy: |
Pros |
Cons |
Post-grant Review; andBusiness Method Review |
Prompt resolution within one year, absent good cause for an extension; Streamlined procedures: limited discovery, submission of evidence, and hearing; Reduced expense relative to civil litigation and current inter partes interference practice; and May be based on prior art that is not eligible for inter partes reexamination and inter partes review. |
Threshold standard is higher than for both ex parte reexamination and inter partes review; More likely than not that at least one claim is invalid; Limited availability—within nine months of grant (except for business methods); Estoppel; and Substantial PTO fees. |
The claims are given their broadest reasonable interpretation and the challenger need establish invalidity only by a mere preponderance of the evidence.
Post-grant review is phased in based on the type of application and when it was filed. Business method patents can be challenged under post-grant review beginning Sept. 16, 2012, as can any pending interferences that are transferred by the board. Other subject matter may be the subject of post-grant review only on or after March 16, 2013.
The availability of these post-grant review procedures for business methods is not limited by the nine-month window that post-grant review of other subject matter is subject to. Instead, business method review may be filed at any time after the patent has issued, for as long as the business method review procedure remains in effect.
The AIA includes an eight-year sunset provision on business method review. Unless removed by Congress, business method review will be treated the same as post-grant review of other patentable subject matter after that point.
The true cost of post-grant review, however, may be its estoppel price tag. Having instituted a post-grant review, the requestor is precluded from relitigating in a civil action any issue that it did or could have raised. This standard will itself be the subject of vigorous litigation for years to come. Nonetheless, the cost of preclusion is real.
If your challenge is based on a good story but its relation to the technical evidence is strained, or it has genuine gut appeal but a weak relation to the precise elements of proof, perhaps the Patent Trial and Appeal Board is not the best forum. A lay jury may be more receptive.
There are many circumstances in which the PTAB may be a more favorable forum than a district court. Particularly, where the challenger fears bias, such as in the financial services, pharmaceutical, and other industries in which public perception may be less than flawless, the PTAB may be a more favorable forum.
More importantly, where the technical details of the story are critical but may threaten to overwhelm or confuse a lay jury or judge, and where understanding and applying the facts may require a basic level of technical expertise, it may be easier for a challenger to persuade the PTAB.
These procedures carry an estoppel price tag, which means that they must be viewed as an alternative to litigation and not as another arrow in the challenger's quiver. Careful consideration must be given to the characteristics and biases of the decision maker in each forum.
In appropriate cases, the PTAB may be the most desirable forum, mitigating the negative effect, if any, of the estoppel provisions. In others, a jury may be preferred and, if so, the estoppel price tag is prohibitively expensive.
Strategy: Inter Partes Review. A third procedure is inter partes review. Where post-grant review can be filed only within nine months after the patent is granted, inter partes review can be filed only after the later of nine months after the patent is granted or any post-grant review is terminated, and within one year after an alleged infringer is sued for infringement. Inter partes review replaces the current inter partes reexamination procedures.
Unlike post-grant review, inter partes review applies to all patents issued, whether before or after the effective date of the AIA. As was the case with the old reexamination procedures, however, inter partes review is limited to patents and printed publications only. Other prior art and defenses that may be considered in post-grant review, or at the International Trade Commission or in district court, cannot be considered during inter partes review.
Strategy: |
Pros |
Cons |
Inter Partes Review |
Threshold standard is lower than for post-grant review; Prompt resolution, within one year, absent good cause for an extension; Streamlined procedures: limited discovery, submission of evidence, and hearing; and Reduced expense relative to civil litigation and current interference practice. |
Threshold standard is higher than for ex parte reexamination; Reasonable likelihood that one or more claims are invalid; Limited window of availability—only after nine months from grant; Exclusions: raise validity by civil action,6 or more than a year after being sued for infringement; Limited grounds of invalidity: patents and printed publications; Estoppel; and Substantial PTO fees. |
As was the case with post-grant review, the threshold is higher than the old "substantial new question of patentability"standard for reexamination. Yet, the standard for inter partes review is lower than that for post-grant review. Inter partes review will be granted if the requester shows a reasonable likelihood that it would prevail on one or more of the claims.
As was the case with post-grant review, the PTO must decide within three months whether or not to proceed with inter partes review and must render its decision within a year of deciding to proceed. Unlike post-grant review, inter partes review is available for any patent, whether issued before or after implementation of the AIA.
In both post-grant review and inter partes review, the burden of proof on the challenger is lower than in litigation. The claims are given their broadest reasonable construction and the burden of proof is by a mere preponderance of the evidence. Apart from limiting inter partes review to patents and printed publications, similar proof is required in each proceeding. It is anticipated that both proceedings will cost substantially less than civil litigation and will be decided within a year, absent an extension of time for good cause shown.
In addition to substantial PTO fees and estoppel effects, both post-grant review and inter partes review entail certain disadvantages. Both have a higher standard to institute the proceedings than the old reexamination proceedings. Both must identify the real party in interest.
Strategy: |
Pros |
Cons |
Document Your Prior Use |
Extends the defense to nonbusiness method patents; and Protects trade-secret owners from claims of patent infringement. |
Must have been used before earlier of filing or patentee's disclosure during the grace period; Limited to the extent of and geographic site of the prior use; Personal to the prior user and not transferable; and Not effective against universities. |
The prior-use defense is now available against all patents. The defense has a number of very specific requirements that alleged prior users must establish to avail themselves of the defense. This again underscores the importance of effective recordkeeping.
The prior use must have been made before the earlier of one year before the filing date or before any disclosure by the patentee during the grace period. In addition, the defense is limited to the use, the extent of use, and the geographic areas where the prior use is proved.
Finally, it is personal to the prior user and cannot be transferred. Nonetheless, particularly for large industrial concerns with stable and geographically diverse operations, the ability to continue to use trade secrets without interference from later-issued patents is a substantial benefit. More importantly, it vindicates the continued availability of trade-secret protection in the teeth of later-filed patents.
Supplemental Examination. The last strategy we will discuss is supplemental examination. The courts have long noted that the defenses of fraud and inequitable conduct have become a "plague"on the patent system. Yet, the PTO is not often aware of every reference that is available. The AIA offers a new procedure for the patentee to have the PTO consider innocently withheld or misrepresented information.
This supplemental examination procedure is available beginning Sept. 16, 2012. If the information is considered, reconsidered, or corrected during a supplemental examination, it cannot be the basis for a fraud or inequitable conduct claim. Effectively, a patentee may now be able to purge the alleged fraud, provided it did not rise to the level of "material fraud"on the PTO.
So far, so good. But wait. In order to get the immunity offered by supplemental examination, the request must be filed before the patentee is accused of fraud or inequitable conduct in a well-pleaded allegation in a civil action or served with a formal notice under the Federal Food, Drug, and Cosmetics Act. OK. We can live with that. But it does get worse.
There is another, far more troubling exception. The supplemental examination and any ex parte reexamination order based upon it must be completed before the issue is even raised in a civil action or an ITC Section 337 investigation.
What? That could take two years. In the meantime, my request is publicly available. You mean that I could file a supplemental examination request, admitting publicly that there is a substantial new question of patentability concerning my patent based on a reference that I failed to submit or, worse yet, affirmatively misrepresented to the PTO7 and, if anyone sues me in district court or the ITC and raises the defense any time before the ex parte reexamination is completed, I get nothing for baring my soul to the PTO? In the immortal words of Johnny Carson's straight man on The Tonight Show, Ed McMahon: "That is correct, sir."
Strategy: |
Pros |
Cons |
Supplemental Examination |
Eliminate fraud or inequitable conduct claim; and Request is not relevant (and therefore not admissible). |
Excludes "material fraud"; Must be filed before fraud is pleaded; May be curtailed by subsequent litigation claims; Will not immunize against antitrust claims; and Will not preclude reference to the U.S. Attorney's Office. |
Still interested in supplemental examination? In spite of this baggage, it just might expunge an alleged inequitable conduct claim—a tantalizing carrot indeed. But there is more.
It will not expunge, or even affect, an antitrust claim based on the same facts. Although this may not be a significant issue in a crowded market for a mechanical invention, it may be drop-dead critical in the case of a blockbuster drug that defines a new market or a critical electrical technology that is essential to an industry standard.
Finally, nothing in the AIA precludes the director from referring to the U.S. Attorney's Office a case of material fraud on the PTO. You may get the immunity you seek. If you have a high-profile, market-defining product, however, the reward may not be worth the risks.
We have now reviewed a dozen different strategies for making the America Invents Act work for you. Some relate to filing strategies. These include filing early and often, and considering the tactical benefits of filing mixed cases, expediting examination, filing preissuance submissions, and using inter partes reexamination, at least while it lasts.
The second group includes older strategies that remain vital: ex parte reexamination, reissue, and effective recordkeeping. The third group includes the new proceedings that are available to challenge bad patents: derivation, post-grant review, business method review, and inter partes review.
Finally, two additional strategies offer a substantial defense to defendants and present a substantial risk to patentees who may try to expunge alleged fraud or inequitable conduct.
As the regulations are finalized, greater predictability will emerge. Presently, however, some things are clear. The PTO has implemented procedures for its trial-type proceedings that are tried and true. The PTO is confident, based on decades of administering trademark cancellation proceedings, that these procedures will work and will enable the PTO to complete its task within its statutory deadlines.
Although these procedures are more limited than the Federal Rules of Civil Procedure for civil litigation, they are reliable and will greatly reduce the cost and resources needed to complete these procedures.
The AIA holds out substantial promise as an effective way to address bad patents without the substantial risk and expense of a jury trial. How it will develop depends on how well you use these new tools. So get out there and check them out!
Endnotes
1 The exceptions are explained more fully in the companion article, "The America Invents Act: How Does It Strengthen the Patent System?" See Coyne, supra. Briefly, the AIA gives applicants a one-year grace period during which neither their own disclosures nor disclosures derived from their inventions or from their disclosures can be used against them.
2 The term of a U.S. patent is 20 years from its earliest effective priority date. A provisional application, however, does not count against the patent term. Thus, a provisional application could be filed on March 15, 2013, the last day to file under the "old rules."It could be followed by a utility application filed on March 15, 2014, claiming priority from the provisional application. The patent would not expire until March 15, 2034. If the patent were also eligible for patent term extension, its term could extend even longer.
3 One of my law partners at Finnegan, Tom Irving, refers to this strategy taken to the extreme of filing multiple pre- and post-March 16, 2013, priority cases, with varying degrees of expedited examination, as the "Jedi Master Mixer" strategy.
4 Damages do not begin to accrue, absent marking of the patentee's product or actual notice. If the patentee is a nonpracticing entity or fails to mark, it will need to provide actual notice of the infringement for damages to run. Rest assured, the patentee will not hesitate to assert willfulness from that point, or from when it marked the product, if it can. As in Pascal's Wager, you have a lot to gain by knowing what your potential adversary is up to and being able to do something about it, and nothing to gain by ignorance.
5 An ex parte reexamination would likely take so long that the time period within which to file a subsequent post-grant review would have closed.
6 In case you were worried that filing a declaratory judgment counterclaim of invalidity in response to an infringement complaint might be considered a "civil action,"terminating the defendant's right to seek inter partes review within one year (I was), the AIA expressly provides at 35 U.S.C. § 315(a)(3) that it does not.
7 Assuming that this was done without material fraud.
Reproduced with permission from BNA's Patent, Trademark & Copyright Journal, Copyright ©2012 by The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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