By Donald Zuhn —
The U.S. Apparent and Trademark Office continues the action of implementing the abounding changes to U.S. apparent law brought about by the achievement of the Leahy-Smith America Invents Act (AIA) on September 16. In one of its added contempo steps, the Office issued a apprehension in the Federal Register (76 Fed. Reg. 59055) that revises the accepted for acceding requests for inter partes reexamination. In the notice, the Office indicates that the rules of convenance apropos inter partes reexamination accept been revised to reflect the new accepted for acceding an inter partes reexamination provided in § 6(c)(3)(A) of the AIA, as able-bodied as accommodate for the abortion of inter partes reexamination on September 16, 2012 as provided in § 6(c)(3) of the AIA.
With attention to the revised standard, the AIA specifies that a appeal for inter partes reexamination will not be accepted unless the advice presented in the appeal shows that there is a reasonable likelihood that the requester will abound with account to at atomic one of the claims challenged in the request. The old accepted for acceding a appeal for inter partes reexamination appropriate that the appeal accession a abundant new catechism of patentability (SNQ) affecting any affirmation of the apparent — the aforementioned accepted for acceding an ex parte reexamination request, which charcoal banausic by the AIA. The new accepted for inter partes reexamination requests applies to any appeal that is filed on or afterwards September 16, 2011 (i.e., the date of achievement of the AIA), but afore September 16, 2012 (i.e., the able date of the inter partes analysis accoutrement of the AIA). The apprehension indicates that a rulemaking apropos inter partes analysis will be forthcoming.
In discussing the new reasonable likelihood standard, the Office cites to the address on the AIA by the House Committee on the Judiciary, appear June 1, 2011, which states at folio 47 that:
The beginning for initiating an inter partes analysis is animated from ‘significant new catechism of patentability’ — a accepted that currently allows 95% of all requests to be accepted –to a accepted acute petitioners to present advice assuming that their claiming has a reasonable likelihood of success.
The House address additionally independent Additional Views presented by Representatives Howard Berman (D-CA), Melvin Watt (D-NC), and Zoe Lofgren (D-CA), in which the legislators acclaimed at folio 165 that “the applied acceptation of the new [reasonable likelihood] accepted in H.R. 1249 is not bright and creates a accident that the PTO will adios accepted petitions at the alpha of the procedure, afterwards added inquiry.”
The Office’s Federal Register apprehension indicates that the old accepted will administer for all inter partes reexaminations requested above-mentioned to September 16, 2011 (including reexaminations ordered beneath the old accepted and conducted afterwards September 16, 2011), the new accepted will administer to reexaminations requested on or afterwards September 16, 2011, but afore September 16, 2012 (including reexaminations ordered beneath the new accepted and conducted afterwards September 16, 2012), and that the Office will not admission requests for inter partes reexamination filed on or afterwards September 16, 2012.
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