In 2011, President Barack Obama signed into law the Leahy-Smith America Invents Act, which brought the most sweeping change to American patent laws since the 1952 Patent Act. One of the most significant changes came in the form of a new regime for the administrative review—and, in many cases, invalidation—of U.S. patents. That regime has now been tested through, and survived, constitutional scrutiny at the Supreme Court.

The Rise of Inter Partes Review

The inter partes review proceedings (IPRs) implemented under the America Invents Act have significantly changed the way that patent disputes are resolved in the United States. The America Invents Act created the Patent Trials and Appeals Board (PTAB), an administrative body within the U.S. Patent and Trademark Office that oversees IPRs and other patent review proceedings in an administrative trial setting. Panels of three administrative patent judges (APJs) are assigned to each petition; they consider whether to review the patents identified in the petition, and then, after determining that a review should be instituted, proceed along an 18-month statutory timeline to a decision on the validity of the patents. The procedure provides an opportunity for the APJs to check the patent examiner’s work, in a deeper dive than would normally occur during patent examination, and often with far more relevant invalidating prior art publications than the patent examiner may have originally considered.