Thursday, May 28, 2015 1:54:58 PM
First, the filing of these IPRs circumvents the protection that the AIA intended to give patent holders like WDDD. The rule is that a defendant in a lawsuit can not file an IPR after one year from the date of the original lawsuit complaint. But 3rd parties get around this law as they are not parties in the lawsuit. We have seen this many, many, many times. And some defendants have even attempted to "join" their own IPR petitions with that of some entity who is not a party in a lawsuit who has filed an IPR on their own.
Next, the IPR process was designed to be completed within one year. This is almost always going to be faster than the patent litigation is going to finish. So in the interim, courts are often granting stays until the IPR process plays out. That can lead to additional delays for patent owners seeking justice. In a statistical summary posted online late last year, stays were granted in over 62% of district court cases where IPR or CBM was initiated. And stays were granted in-part/denied in-part another 8% of the time.
Additionally, defending IPRs is not free. It generally requires additional counsel for patentees. The same firm that represents a patent owner in district court is usually not best-equipped to navigate the PTO trial and its own set of rules.
There's a reason former chief justice of the CAFC, Randall Rader, called IPRs a "game changer" and that the PTAB administrative patent judges would be "acting as death squads, killing property rights."
One of the worst aspects of the IPR is that it is not well understood by the market/media. Many patent companies have been the subject of negative headlines and biased media reporting as a result of IPR petitions being filed against them. In fact, many notable investors as well as some hedge funds, have deliberately been targeting IPRs to short companies. Many articles have been written about this strategy and the reason behind it. (Actually, some of it is being done to bring awareness to the IPR problem and force lawmakers to take swift action to fix the loopholes and problems associated with IPRs).
In the end, I have no idea how this will play out. I just know it's worth keeping an eye on.
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