Considered “a potent tool against patent-holders,” the inter partes review process is under attack.
Per Ars Technica, which continues to be a leading source for patent news, the process is celebrating its fifth anniversary and will be under scrutiny when the Supreme Court hears Oil States Energy Services v. Greene’s Energy Group, which challenges the process.
IPR was established in 2011 with the passing of the America Invents Act. While it’s similar to court in that an accused infringer has to prove that a patent is invalid and the owner has to prove its worthiness, it’s a quicker (usually not lasting more than a year and a half), far more inexpensive (hundreds of thousands of dollars compared to millions) way of solving disputes.
The opposition to IPR, while growing, is nothing new. Says Ars, it’s been present since 2012 by particular groups.
“Pharma and biotech companies, fearful that their prized patents would be busted, raised the specter that short-sellers would continuously attack their most valuable patents, threatening innovation for their own profit.”
Ars goes on to say that one problem with this thinking is if a well-defended patent doesn’t hold up in an IPR, then perhaps the company shouldn’t be benefiting from “monopoly profits.”
Also opposing IPR are parts of the “IP community,” and with good reason: patent owners have lost more than they’ve won in the process.
“Statistics collected by Unified Patents show that in about 73 percent of cases where the PTAB institutes a review, it results in a cancellation of all claims. About 13 percent of cases end with some claims being canceled, and just 14 percent result in all claims being upheld.”
Surprisingly, many patent attorneys do support IPR, despite the process infringing on their bottom line. Also surprisingly supportive is the Patent Office, even though the process puts into question their approval of the original patent to begin with.
Ars states that while IPR will most likely pass its upcoming Supreme Court test, it probably won’t be around in another five years.