Ideas for a better review process
Kevin Rivette, a intellectual property consultant and author, completed a study of the first 360 post-grant reviews filed since the program started in 2001. While most cases follow a standard flow, the process can become byzantine in complexity, he said.
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It takes 28 months for a case to go through the re-exam process, the Patent Office reports. But Rivette's study found a more typical average is 36 to 52 months unless there is an appeal in which case it can take five to eight years. No case has been through the full appeals process yet, although there is some evidence the process has been speeding up, Rivette said.
He described the Patent Assassin's approach as "a tactic that will just swamp the patent office with stuff that really shouldn't be there. You lose a lot of your patent rights without ever being able to get to court," he said.
In Rivette's view, the post-grant review process needs to be reformed because it has become a game people play in patent licensing negotiations. "The standard should be very high so you don't have a lot of rework," he said.
He recommended that all cases first be sent not to a patent examiner but to an administrative law judge seasoned with dealing with strongly opposed parties. "The problem today is you have high powered litigators that examiners have to deal with, so it's an asymmetric power arrangement," he said.
Any appeals should go directly to the court of appeals for the federal circuit, not a patent office panel, he added. "We really can't have a huge rework system inside the patent office," said Rivette who also chairs an advisory group for the patent office.
His comments echoed those of Senator Jon Kyl (R-Az.) who argued at a recent committee meeting that the Patent Reform Act of 2009 as it is currently drafted would "be impossible [for the patent office] to administer" and would amount to "a death sentence for patents" owned by small inventors who lack the resources to defend their work.
"It could cause a train wreck at the agency and hurt the patent owners we want to protect," Kyl added.
A chief technology officer posted comments on a recent EE Times story, suggesting all infringement claims should go directly to a legal mediator before they go to court. All challenges should trigger immediate re-exams open to third-party briefs to quickly eliminate poor quality patents, he added.
Courts should consider the behavior and size of both sides during mediation and re-examination, he added.
"Use of sanctions and attorneys fees should be far more available to the judges," he said. "When large companies and patent trolls learn that they will get penalized for misbehavior, then the number of cases will drop rapidly," he added.
For his part, 'patent assassin' Sereboff said he generally likes the existing post-grant review process but "I'd expedite the appeals process and cut down on the time periods to make the whole process run faster.
"I also would create some consistency on how litigation is [put on hold] when you have a re-exam," he added. "Today it's unpredictable what a judge will do."