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| post-grant review | |
|---|---|
| Name | Post-grant review |
| Caption | Administrative review of issued patents |
| Location | United States, European Patent Office, Japan Patent Office |
| Established | America Invents Act (2011) |
post-grant review is an administrative procedure for challenging the validity of an issued patent before a specialized tribunal or patent office, used to examine patentability and related issues after grant. It functions alongside opposition, reexamination, cancellation, and appeals mechanisms in systems such as the United States Patent and Trademark Office, the European Patent Office, and the Japan Patent Office. The procedure interacts with litigation in courts including the United States Court of Appeals for the Federal Circuit, the Supreme Court of the United States, the High Court of Justice (England and Wales), and the Federal Court of Australia.
Post-grant review typically permits third parties such as corporations like Apple Inc., Samsung Electronics, Google LLC, and Microsoft or institutions like General Electric, Siemens, Bosch, and Bayer to seek administrative cancellation or amendment of a patent by disputing claims before bodies like the Patent Trial and Appeal Board or the European Patent Office Boards of Appeal. It often runs contemporaneously with judicial disputes in courts such as the United States District Court for the Eastern District of Texas, the United States District Court for the District of Delaware, or the High Court of Justice (England and Wales), and is influenced by decisions from tribunals including the World Intellectual Property Organization Arbitration and Mediation Center, the International Court of Justice, and the Court of Justice of the European Union. Key stakeholders include law firms like Baker Botts, Fish & Richardson, Allen & Overy, and Freshfields Bruckhaus Deringer and representative organizations such as the American Intellectual Property Law Association, European Patent Institute, Intellectual Property Owners Association, and Max Planck Institute for Innovation and Competition.
The modern concept emerged in legislative reforms initiated by statutes such as the America Invents Act and policy proposals from agencies including the United States Patent and Trademark Office and the European Commission. Early precedents include opposition systems at the European Patent Office and reexamination practices at the United States Patent and Trademark Office influenced by cases from the United States Court of Appeals for the Federal Circuit and rulings from the Supreme Court of the United States like decisions involving eBay Inc., KSR International Co., and Alice Corp.. International comparative influences trace to institutions such as the Japan Patent Office, the Korean Intellectual Property Office, and tribunals like the World Trade Organization panels and the Organization for Economic Co-operation and Development. Legislative history often references committees and actors such as the United States House Committee on the Judiciary, the United States Senate Committee on the Judiciary, lawmakers like Patrick Leahy, and policy advocates such as David Kappos.
Procedures vary by office: filings at the United States Patent and Trademark Office proceed under rules administered by the Patent Trial and Appeal Board with requirements influenced by decisions from the United States Court of Appeals for the Federal Circuit and submissions by parties including Intel Corporation, Qualcomm, Intel, Nokia, and Huawei. European oppositions occur at the European Patent Office under the European Patent Convention with appeals to the European Patent Office Boards of Appeal and occasionally to national courts like the Bundesgerichtshof or the Cour de cassation. Filing requirements reference statutes and protocols from the America Invents Act, the European Patent Convention, and internal guidelines from agencies such as the Japan Patent Office and the Korean Intellectual Property Office. Typical procedural steps mirror litigation involving service, discovery-like exchanges seen in disputes before the United States District Court for the District of Delaware, briefing familiar to practitioners from firms like WilmerHale, and evidentiary standards evaluated against precedents from the Supreme Court of the United States.
Common grounds invoked include novelty and inventive step (or obviousness) assessed against prior art such as publications from institutions like IEEE, Nature Publishing Group, Elsevier, and patents from offices including the European Patent Office and the United States Patent and Trademark Office. Challenges often cite prior art by companies like IBM, Raytheon Technologies, Intel Corporation, and researchers affiliated with Massachusetts Institute of Technology, Stanford University, Harvard University, and California Institute of Technology. Other grounds include lack of enablement or written description referencing standards bodies like International Organization for Standardization, Institute of Electrical and Electronics Engineers, and regulatory documents from agencies such as the Food and Drug Administration or European Medicines Agency in pharmaceuticals and medical devices developed by Pfizer, Roche, Johnson & Johnson, and Medtronic.
Outcomes include cancellation, amendment, or confirmation of claims, with appeals to entities like the United States Court of Appeals for the Federal Circuit, the Supreme Court of the United States, the European Patent Office Boards of Appeal, or national courts including the High Court of Justice (England and Wales), the Bundesgerichtshof, and the Federal Court of Australia. Decisions have shaped litigation strategies for litigants such as VirnetX, eBay Inc., Apple Inc., Samsung Electronics, and Google LLC, and informed settlement practices involving corporations like Microsoft and Oracle Corporation. Remedies and procedural doctrines draw on precedents from influential cases involving parties like TiVo Inc., Broadcom Corporation, and InterDigital.
Jurisdictional variations are pronounced: the United States system under the America Invents Act emphasizes adjudicative trials at the Patent Trial and Appeal Board; the European Patent Office relies on opposition proceedings under the European Patent Convention and appeals to the European Patent Office Boards of Appeal; Japan uses administrative review via the Japan Patent Office; Australia employs re-examination and judicial review at the Federal Court of Australia. Other influential jurisdictions include the People's Republic of China via the China National Intellectual Property Administration, Republic of Korea via the Korean Intellectual Property Office, and multinational frameworks involving the World Intellectual Property Organization and the Organization for Economic Co-operation and Development.
Debates over costs, efficiency, and innovation impacts reference analyses from think tanks and research centers such as the Brookings Institution, American Enterprise Institute, University of Chicago Law School, Harvard Law School, Stanford Law School, and the Max Planck Institute for Innovation and Competition. Empirical studies cite data from the United States Patent and Trademark Office, the European Patent Office, academic articles in journals like Journal of Intellectual Property Law & Practice, Harvard Law Review, Yale Law Journal, and policy reports from organizations including the Organisation for Economic Co-operation and Development and the World Intellectual Property Organization. Advocacy positions reflect corporations like Google LLC, Apple Inc., and Intel Corporation favoring robust administrative review, while associations such as the Pharmaceutical Research and Manufacturers of America, Biotechnology Innovation Organization, and firms like Pfizer and Johnson & Johnson often emphasize stronger patent stability.