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Litigating the validity of patent claims can be very costly in terms of time and money. The various post-grant patent challenge mechanisms introduced at the Patent and Trademark Office (PTO) through the Leahy-Smith America Invents Act (AIA) have promised an efficient administrative alternative to high-cost district court litigation. In a series of decisions over the past year, the PTO’s Patent Trial and Appeal Board has offered guidance that can better inform decision makers as to both whether to pursue PTO post-grant proceedings and what discovery to expect. In considering and limiting the scope of discovery available, the Board has stressed, both in its orders and in telephonic hearings, the role of these new proceedings as an efficient alternative to District Court litigation — and one that must be completed within the one-year (or, if extended, 18-month) period mandated by statute.

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