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The Evolution of Patent Office Litigation Practice Under the AIA

A Review of Past Reform and a Look Ahead to Possible Changes on the Horizon

By Todd R. walters, Erin M. Dunston, Jonathan R. Bowser, Roger H. Lee, Kyle K. Tsui, Mythili Markowski, Christopher M. Cherry, David W. Leibovitch, and Shantanu C. Pathak

©2017. Published in Landslide, Vol. 9, No. 3, January/February 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Five years ago, Congress enacted the Leahy-Smith America Invents Act (AIA), and the landscape for patent litigants has never been the same. Post-grant proceedings under the AIA (including inter partes review (IPR), post-grant review (PGR), and covered business method (CBM) review) have proven to be a relatively expedient, cost-effective option for parties seeking to contest the patentability of issued patent claims.1 Defendants in infringement actions have opted to have their invalidity case heard by the Patent Trial and Appeal Board (PTAB) in parallel AIA proceedings,2 and courts have been willing to stay such litigations pending the outcome of AIA proceedings.3

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