David Cavanaugh and former Counsel Anant Saraswat explore how the implementation of the America Invents Act has led to an increase in inter partes review proceedings at the PTAB as a way to challenge the validity of a patent in this article published in Bloomberg BNA's Patent, Trademark & Copyright Journal.
With the implementation of the America Invents Act of 2011, inter partes review proceedings at the Patent Trial and Appeal Board (PTAB) have become a popular way to challenge the validity of a patent. The types of information which may be used to challenge validity are limited to "patents and printed publications." Typically, when practitioners think of "printed publications," they think of articles in academic or industry journals. However, sometimes useful prior art references are neither patents nor journal articles, but another type of document. In such instances, a party contemplating a validity challenge should consider whether the document is a "printed publication" under the statute.
This article surveys recent PTAB decisions which provide an indication how the PTAB is evaluating the status of a document as a printed publication. The article also provides guidance on what evidence the PTAB has considered persuasive and what has been found wanting.
