"The proposed rules focus on institutions of future IPRs and EPRs (based on the new IPR stipulation rule), but the new rules should also apply to the institutions of EPRs for patents that have past or pending IPRs to prevent patent challengers from using EPRs where the legal issues are already adjudicated in past IPRs or will be adjudicated in pending IPRs."
"If the new rules are not upgraded to apply to these "transitional" EPRs, serial patent challenges that the Office is trying to immediately prevent will be allowed to continue for at least another 1.5 years by allowing institutions of these "transitional" EPRs ("transitional" because the EPR institution decision will be after the new rules become effective, but the prior IPR was instituted before the new rules became effective)."
USPTO Director John Squires aims to stop serial patent challenges by ensuring a challenger has one opportunity to challenge a patent in one proceeding and one venue. A primary loophole is allowing ex parte reexaminations (EPRs) after past inter partes reviews (IPRs) or during pending IPRs for the same patents. The proposed rules focus on future IPR and EPR institutions but fail to address transitional EPRs that could re-litigate issues already adjudicated or pending adjudication in IPRs. Without expanding the rules to cover transitional EPRs, serial challenges could continue for at least 1.5 years.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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