Intellectual Property Law

New Matter SUMMER 2017 Volume 42, Number 2

Federal Circuit Report

REX HWANG
Glaser Weil Fink Howard Avchen & Shapiro LLP

NICK HUSKINS
Glaser Weil Fink Howard Avchen & Shapiro LLP

Editor’s Correction: Nicholas Huskins co-authored the Spring 2017 Federal Circuit Report with Rex Hwang in Volume 42, Number 1, 2017 of New Matter. His credit was inadvertently omitted from the print edition.

Introduced through the America Invents Act ("AIA"), a covered business method ("CBM") review proceeding is an administrative trial conducted by the Patent Trial and Appeal Board ("PTAB"). Similar to inter partes review ("IPR") and post grant review ("PGR") proceedings, a party charged with infringement may initiate a CBM review to challenge the asserted patent’s validity. CBM review can be a powerful tool for accused infringers because it does not carry the same limitations as IPRs or PGRs. For instance, CBM reviews offer a broader range of grounds for challenging a patent’s validity than IPRs (e.g., section 101 and 112 challenges), and are available after the nine-month window of eligibility in which PGRs may be initiated. Notably, it has been reported that 97% of instituted CBM reviews have resulted in some or all claims being held invalid.1

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