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A Post-Grant Review can be used to challenge newly-issued patents on wide-ranging grounds, but PGRs remain relatively unpopular: statutory estoppel may be a reason why.
The America Invents Act ("AIA") created new procedures for challenging the validity of patents at the PTAB. One of those procedures is Post-Grant Review ("PGR"). PGR is available for any issued patent claiming priority after March 16, 2013. The window for a PGR petition is time-limited: a PGR challenge must be filed in the first nine months after a patent issues, but the petitioner can raise any grounds for invalidity that can be asserted in district court—including subject matter ineligibility under § 101, invalidity based on product prior art under §§ 102 or 103, and invalidity based on written description or enablement under § 112. This is unlike Inter Partes Review (“IPR”), which is strictly limited to §§ 102 and 103 patentability challenges based on prior art patents or printed publications.
Read the full article at ptablitigationblog.com.
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