Implemented on September 16, 2012, by the U.S. Patent and Trademark Office, inter partes review is a new proceeding that permits a party to challenge the validity of a patent on the basis of prior art patents or printed publications. At the time of its introduction, there was uncertainty about how frequently IPR would be used, how successful petitioners would be in having their petitions instituted, and the intricacies of discovery, claim construction, trials and estoppel provisions. Now, a year later, we have learned a great deal, but many questions remain.

Despite its relatively high cost ($23,000, not including attorney fees), patent challengers have embraced IPR as a viable means of challenging a patent’s validity. As of September 15, a total of 483 petitions for IPR had been filed. While initially averaging about one petition per day, there has been a steady increase in the number of filings, with more than 60 petitions filed in August. And the proceeding has been used to challenge patents in all areas of technology. Slightly more than half of all petitions involve patents related to computer hardware or software; 20 percent involve patents in the biotechnology and chemical arts; and 9 percent involve patents in the mechanical arts. The remaining challenged patents fall into various other technology areas, and include a handful of design patents. Most of the challenged patents (85 percent) are also involved in co-pending district court litigation.

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