Search

Inter partes review (IPR) is one of several mechanisms for vetting patents after they have been granted. While the purpose of IPRs is to provide a cheaper, more expert alternative to litigation for screening out bad patents, the devil is in the design details. For example, the inclusion of key procedural features in IPRs, such as fixed time frames and expanded discovery contributed to making it far more popular than its predecessors. As the United States weighs additional changes to the administration of IPRs, including expanding the basis for amendment and unifying standards of review, it is worth considering the experiences of the European Patent Office (EPO) and Germany with their parallel opposition and nullification (revocation) procedures. This Article compares and contrasts U.S. IPR, EPO opposition, and German revocation actions and explores what they suggest, collectively, about the optimal design of post-grant review systems. Despite heightened concerns in the United States about IPR invalidation rates, outcomes are comparable across the three venues: 81% of reviewed claims and 26% of claims challenged in U.S. IPR proceedings are cancelled; 68% of patents reviewed and 63% of patents challenged in EPO opposition proceedings are amended or canceled; and 73% of the patents reviewed and 28% of the patents challenged in German revocation proceedings are partially or fully invalidated. But seemingly slight differences have contributed to the distinct roles each proceeding plays in its domestic patent system. The relative slowness of German infringement actions has translated into a parallel district action stay rate of 10-15%, as compared to an 80% stay rate among U.S. district court litigations that proceed in parallel to the IPR. Patentees also have fewer rights in U.S. IPRs than they do in EPO opposition proceedings, but have substantial rights to amend and can expect consolidated challenges. Focusing on how small differences have had big impacts on procedural and substantive outcomes, this Article discusses the implications of features such as the ability to amend and pre-institution decisions on the design and efficacy of post-grant patent reviews. [ABSTRACT FROM AUTHOR]

An introduction is presented in which editor discusses various articles within the issue on topics including standard essential patents, patent infringement and litigation of nonpracticing entities (NPEs) in Europe.

Non-practicing entities (NPEs), some of which are also labeled patent assertion entities or "patent trolls," play a disputed role in our modern patent system. These entities, which do not make and sell products or services that embody their patented technologies, file a large percentage of all patent lawsuits. The perceived patent "troll" problem has dominated the discussion of patent reform in recent years. The policy debate is complicated by disagreement over who counts as a "patent troll," and by debates over whether NPEs are inherently problematic or whether the real problem consists of entities (practicing or not) that assert weak patents. In this Article we present empirical results that provide insight into both questions. Drawing on a comprehensive data set we built of every patent lawsuit filed in 2008 and 2009 that resulted in a ruling on the merits, we find that the situation is rather more complicated than simply comparing operating companies to NPEs. While operating companies fare better in litigation than NPEs overall, breaking NPEs into different categories reveals more complexity. And once we remove certain pharmaceutical cases from the mix, no patent plaintiff fares very well. That is particularly true of software, computer, and electronics patents. [ABSTRACT FROM AUTHOR]

Patents, by their very nature, are a type of monopoly, and are so important to our country's intellectual and technological advancement that the Founding Fathers granted Congress the power "to promote the progress of science and useful arts, by securing for limited times to ... inventors the exclusive right to their respective... discoveries. '" But in recent decades, that imperative has lost its footing. Mass patent aggregators, companies that compile, hoard, and assert patent rights without contributing products to the world have contorted that vision, "Patent Trolls" assemble portfolios of weak patents to corner and dominate technological spaces, crowding out innovators and demanding extortionate licensing fees from unsuspecting targets. Federal antitrust laws forbid improper accumulation and assertion of monopoly power, which is precisely how trolls' business model operates. And yet, courts traditionally have not found a patent portfolio to constitute a "relevant market" under the Sherman Act. This Note explains why they should, and in doing so examines two cases between identical litigants, the latter of which may provide a roadmap for pursuing antitrust counterclaims against serial patent assertion entities. [ABSTRACT FROM AUTHOR]

The article reviews the development of the patent laws in the U.S. concerning defensive methods used to navigate webs of overlapping patent rights. Topics discussed include rise of non-practicing entities (NPEs), changes in substantive doctrines, trend towards increased monetization, evolution of defensive strategies, and laws defined by the U.S. United States Patent and Trademark Office regarding the issue.