AIA and Patent Trolls

A White House report estimates that in 2012 patent trolls threatened over 100,000 companies with infringement suits.

The America Invents Act gives patent holders a new weapon against the trolls, but it is not without drawbacks.  The AIA allows entities to challenge the validity of patents through the USPTO within nine months of issue (except for certain business method patents). 

This can be beneficial if you are a target of patent trolls but scary if you obtain a patent, because it is now easier to invalidate!

Reports are that entities have a better chance of winning a USPTO challenge than winning in court, and it is less expensive--about $300K vs. $650K through the courts. 

However, as the law now stands, when an entity uses the USPTO challenge, they may forfeit their ability to challenge the patent in court.  This is due to a mistake in the way the law was written, and legislation has been introduced by House Judiciary Committee Chairman Bob Goodlatte to allow subsequent use of the courts if an entity loses the challenge.

The details of the challenge process and other post-grant changes are too lengthy for a blog post, but a great summary can be found at the Pillsbury Law firm website.