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Controversial patent review program upheld by appellate court

As we have discussed in past posts on our blog, patents are granted to inventors by the United States Patent and Trademark Office (USPTO) as a way of preventing others from making, selling or using an invention for a certain amount of time.

But since the USPTO is in the business of promoting technological progress, an invention has to be “novel” or “nonobvious” in order for a patent to be granted.

After a patent has been granted and the inventor believes that someone is infringing upon it, the inventor can file a claim in court. Traditionally, patent infringement lawsuits played out through litigation; however, in 2012, a new program known as inter partes review was created.

Inter partes review essentially gives the USPTO the power to invalidate the patent, putting an abrupt end to the litigation. It is something that big tech companies like Google and Apple have been relying on heavily to reduce litigation costs after being accused of patent infringement.

In fact, a former judge calls the inter partes review board a “death squad” for patents, so as you can imagine, most patent holders and their attorneys are not fond of the process.

Much to their dismay, the U.S. Court of Appeals for the Federal Circuit recently validated the program in a case involving a patent for a speed limit indicator, Bloomberg Business reported.

In the case, the patent holder had sued various companies for infringement. In return, one of the companies filed a review petition with the USPTO, which invalidated the patent after finding that the speed limit indicator was an obvious variation of existing inventions.

The patent holder then appealed, questioning the validity of the USPTO’s inter partes review process. In its decision, the top patent court held that the inter partes review program is legitimate and its finding in the case should stand.

Since the decision was split, though, it is possible that the patent holder will ask for a review by the entire nine-judge Court of Appeals panel, which could reach a different decision. An appeal to the U.S. Supreme Court is also possible. We will keep you posted.

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