A party accused of infringing a patent may challenge the validity of the patent in the federal court infringement litigation or in separate administrative proceedings in the Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). One of the methods available in the PTAB is an inter partes review (IPR), which was created by the America Invents Act.
In order to file a petition for IPR, the challenger must argue that some or all of the claims of the patent are invalid on certain grounds, including novelty and nonobviousness, and must show that there is a “reasonable likelihood” that they will prevail on at least one claim. The statutes require that a petition for IPR be filed within one year of the challenger being served with a complaint for patent infringement. 35 USC section 315(b). The PTAB reviews the petition and decides whether to institute IPR. The decision whether to institute IPR is not appealable. 35 USC section 314(d).
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