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We've seen the figures tossed around in patent litigation. Even in frivolous suits brought by patent trolls, the cost of defending against infringement claims can be in the millions of dollars. And much like civil litigation, the high costs have necessitated a form of alternative dispute resolution: the inter partes review.
Instead of filing a lawsuit, instead of engaging in extensive discovery, a third-party can request that the patent office reexamine the patentability of one or more claims in a patent. The review is based only on prior art from patents or printed publications. For truly frivolous patents, this means significant savings for a defendant. And while it may not be as satisfying as leaving trolls with the check (via fee-shifting, which is getting increased attention), it certainly is quicker and far less risky.
Big Benefits, Small Costs
Bloomberg notes that at least 592 petitions have been filed to date, more than the 520 expected by the agency. Why is there so much demand for a new, unproven procedure?
For one, it's cheaper, with estimated costs of up to $300,000, compared to the minimum $650,000 one might spend in court, reports Bloomberg. It isn't unusual to see figures above a million dollars either.
Other benefits include a shorter timetable (decisions come within one year) and more importantly: an educated adjudicator. That's not a stab at trial judges, but many of them are lack science and/or patent law backgrounds. The USPTO itself handles these patent "mini-trials," and claims are reviewed by USPTO staff, who, of course have a background in patents. It certainly beats a prosecutor-turned-judge or twelve laypeople of varying educational backgrounds making the decision.
Big Names, Smaller Games
Who's embracing inter partes review? The names cited by Bloomberg include a Who's Who of tech, including Google and Oracle. Google, after asking for reviews in claims filed against it, has settled two cases in the last year.
Inter partes has also invaded the litigation process, with companies seeking stays in litigation to allow for the USPTO review. Trulia recently was granted a stay in ongoing litigation by asking for inter partes review. Zillow called the move "gamesmanship," reports Bloomberg.
How about you? Has your company employed inter partes review in its war against patent trolls? Have you found the review process efficient and/or effective? Sound off on Facebook at FindLaw for Legal Professionals.