The new patentability trial proceedings of the Patent Trial & Appeal Board (PTAB) have been met with great enthusiasm by many science and technology innovators as the first true alternative to patent litigation; especially those faced with costly “patent troll” assertions. Still, there are a small minority of patent challengers that look on these “new” proceedings with great fear and skepticism. These naysayers will often dismiss the speedier, lower cost PTAB proceeding as being too much of an estoppel risk.
The estoppel concern is almost always distilled down to two unenlightened propositions. That is, a fear of a “new, untested and unpredictable” proceeding, and the belief that the USPTO may somehow give short shrift to the submitted prior art.
Both criticisms are easily demonstrated as misguided. Read the rest of this entry »