{
  "id": "R44905",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R44905",
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  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 462898,
      "date": "2017-07-26",
      "retrieved": "2017-08-22T13:45:04.399472",
      "title": "Inter Partes Review of Patents: Innovation Issues",
      "summary": "The Leahy-Smith America Invents Act (AIA) of 2011 introduced inter partes review proceedings (IPRs) into the patent system. IPRs allow the U.S. Patent and Trademark Office (USPTO) to revisit\u2014and possibly cancel\u2014a patent the agency had previously allowed. Under these proceedings, any individual may petition the USPTO to assert that a granted patent is invalid in view of earlier patents or printed publications. A petitioner must demonstrate that there is a \u201creasonable likelihood\u201d that he would prevail for the IPR to begin. Should the USPTO\u2019s Patent Trial and Appeal Board (PTAB) grant the petition, it will preside over a trial-like proceeding before a panel with at least three members. These procedures include the use of witnesses, the opportunity for limited discovery, and an oral hearing prior to a decision on the merits. IPRs must ordinarily be completed within one year and may result in patent claims being upheld, invalidated, or confirmed as amended.\nIPR proceedings are arguably the most impactful of the numerous reforms made by the AIA. To many, their unexpected popularity suggests that Congress met its objectives in providing an expedient and cost-effective means for challenging patents that the USPTO erroneously issued. These proceedings potentially harness the technical expertise of the USPTO, improve patent quality, are less costly than litigation in the district courts, and can confirm the validity of patents that meet the statutory standards. \nOthers are critical of these proceedings. Many members of the patent community view IPRs as being biased against patent owners and believe that they have significantly eroded the confidence of innovative industry in the U.S. patent system. They observe that most patents involved in IPRs are also subject to litigation in the federal courts, a development that increases the expense and complexity of patent enforcement. They also believe that the prompt pace of these proceedings, as well as the possibility of multiple IPR petitions being filed against a single patent, may challenge patent owners.\nStakeholders have considered numerous possible reforms to the structure of IPR proceedings. In the 115th Congress, the STRONGER Patents Act of 2017 (S. 1390) would require the PTAB to give claim terms their ordinary meaning, in contrast to the \u201cbroadest reasonable interpretation\u201d in keeping with USPTO rules. S. 1390 would also require that patent challengers prove invalidity by \u201cclear and convincing\u201d evidence, in contrast to the \u201cpreponderance of the evidence\u201d standard that currently applies. And the bill would limit use of IPR proceedings to individuals and enterprises with a demonstrated adverse relationship to the challenged patent. S. 1390 was read twice and referred to the Committee on the Judiciary on June 21, 2017.\nOther aspects of IPR law and practice remain topics of debate. Some stakeholders assert that even though the AIA provides patent proprietors with the opportunity to amend their claims during an IPR, the PTAB rarely allows them to do so. Others observe that the PTAB often initiates IPRs on a smaller number of claims than are challenged. They believe that such a \u201cpartial initiation\u201d can create confusion about claims that were not considered by the PTAB. Some commentators express concern that the increased number of appeals from the USPTO to the Federal Circuit may be frustrating the congressional goal of providing the court with a well-rounded caseload. Critics of the PTAB also believe that IPRs violate the constitutional separation of powers principle and the Seventh Amendment right to a jury trial.",
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      "typeId": "REPORTS",
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  "topics": [
    "Constitutional Questions",
    "Foreign Affairs",
    "Science and Technology Policy"
  ]
}