The Leahy-Smith America Invents Act of 2011 introduced post-grant review as a new administrative proceeding in the U.S. Patent and Trademark Office. Post-grant review provides a third-party challenger with the opportunity to submit certain information and arguments in the hope that the USPTO will reconsider and cancel one or more of the claims of a patent. With the exception of business method patents and pending interferences, post-grant review became available for patents having a priority date later than March 15, 2013. Post-grant reviews are handled exclusively by the Patent Trial and Appeal Board, the decisions of which can be appealed by either party directly to the Federal Circuit.
A post-grant review must be instituted within nine months from the issuance or reissuance of a patent. In order to institute a post-grant review, a challenger, who must be the real party in interest, must establish: (1) at least one claim of the patent is more likely than not to be found unpatentable; or (2) the petition raises novel or unsettled legal questions that are important to other patents or patent applications.
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