The last round of patent reform was enacted into law in 2011 as the America Invents Act (AIA). Along with the AIA came new patent challenge mechanisms that first became available to the public in September of 2012. These mechanisms have quickly increased in popularity and are only now disrupting the business of abusive patent litigation. For whatever reason, Congress has decided to forge ahead with new reform efforts despite the game changing impact of the AIA — an effort seemingly stalled at present. As Congress continues to debate the need for further patent reform, the impact of the AIA is becoming increasingly harder to ignore. That is, the public’s appetite for the low cost, post grant patent challenge proceedings of the AIA is surging, and the efficacy of these proceedings on assertion entities is impressive.
Since their initial availability in September of 2012, Inter Partes Review (IPR) and Covered Business Method (CBM) challenges have exceeded all expectations in terms of popularity with patent challengers. Last month, the USPTO received roughly 160 new filings, a new monthly record. (Click to Enlarge)
The first of these PTAB patent challenge proceedings are only now concluding. Still, even at this early stage the public recognizes the value in proceedings that offer vast improvements in cost, predictability, effectiveness, and speed over traditional district court proceedings— but it is the speed and effectiveness that is changing the perspective of the judiciary on staying litigation pending USPTO proceedings.
What has yet to be seen is the first court to refuse a stay pending an IPR or CBM only to have the PTAB beat them to a decision that effectively moots their parallel effort. Once that happens, which is inevitable for many districts, stays may even become the rule in some districts.
Further reform anyone?