The new post grant patent trials of the America Invents Act (AIA) are designed to provide a true alternative to patent litigation. That is to say, current patent reexamination proceedings are typically pending 4-5 years through appeal, if not longer. As a result, patent reexamination is primarily utilized as an additional litigation tool rather than the alternative to patent litigation intended by Congress. Conversely, the new AIA trial proceedings are designed to conclude, by statute, within 12-18 months of initiation.
Whether, choosing Post Grant Review (PGR), Transitional Program for Covered Business Method Patents (TPCBMP), or Inter Partes Review (IPR), the new proceedings will conclude relatively promptly, and estoppel will attach upon a written determination of the Patent Trial and Appeal Board (PTAB). Based on the increased speed, and estoppel result, it is expected that the new proceedings will provide a compelling basis to stay parallel infringement actions.
However, the International Trade Commission (ITC) also has a statutory mandate for expeditiously processing their docket (typically within 15 months). For this reason, the ITC is currently an “anti-stay” forum. Given the likelihood of future parallel tracks of the USPTO and ITC, will the ITC change their “anti-stay” practice to account for the post-AIA world? Read the rest of this entry »