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Patent Reform May Not Cure a Potential for Bias Against Patentee in Inter Partes Re-examination

By Leslie A. McDonell

The use of inter partes re-examination in place of costly litigation, or in tandem with it, has become a well-accepted strategy for those seeking to invalidate a patent for which infringement allegations have been raised. Inter partes re-examination has been viewed as pro-challenger, in part because very few patents (less than 10%) emerge from the inter partes re-examination process in the same form that they entered. Rather than changing this picture, at least initially, the new post-grant challenge procedures proposed in the patent reform legislation will merely add another set of tools to the patent challenger's arsenal. This article explores a perceived bias against the patent holder in inter partes re-examination as well as the effect that patent reform legislation may have on the process.

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