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CHALLENGE VALIDITY AT THE USPTO
Sometimes, litigation is avoided or supported through post-grant proceedings at the USPTO. In fact, approximately one-third of patent infringement trials will have one or more review proceedings going because of the procedural advantage of challenging patentability at the USPTO, rather than before a jury.
TYPES OF CHALLENGES
There are three types of post issuance challenges to patentability: ex parte reexamination (EPX), inter partes review (IPR) and post-grant review (PGR).
Ex Parte Reexamination (EPX)
EPX is a one-and-done shot for a third party to file a request for the USPTO to re-examine an issued patent, based on printed prior art that presents a substantial new question of patentability.
Post-Grant Review (PGR)
PGR is another proceeding instituted by the AIA that is similar to an IPR proceeding, but allows patentability to be challenged on any ground, not just printed publication prior art. A PGR petition can only be filed for an AIA patent and must be filed within nine months of the date of issuance.
Inter Partes Review (IPR)
IPR is a proceeding, instituted by the AIA, that allows third parties to challenge the patentability of any issued U.S. patent by way of a proceeding before a panel of three patent judges at the PTAB. A petition for IPR must be filed no later than one year after the service of a patent infringement complaint. The petition is based only on printed publication prior art and must establish that it is reasonably likely that at least one claim in the issued patent is unpatentable.
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