Tuesday, June 26, 2007

Is post-grant opposition going to become law in 2007?

Although the website postgrant announced: Our thinking is that a Post-grant Opposition procedure will be come law in 2007 in the USPTO, that thinking is not shared at IPBiz and by certain others, such as Harold Wegner, who wrote:

Going into the hearing, the Chairman clearly recognized the total impasse from the last Congress over "second window" post-grant review and that the current legislation as introduced is dead in the water.

IPBiz says "second window" is NOT happening, and that "first window" might turn into an upgraded re-exam provision. (thus, no "post-grant opposition" procedure is a real possibility, but then it is possible that patent reform 2007 may end as patent reform 2005).

Separately, at IPCentral see Patent Reform--Post Grant Review Promising?

Also, note the post by Brooks, Post-Grant IP Law Blog Launches.

Some people should not be writing about the topic of oppositions and re-exams until they get the facts straight. Thus, one has the following:

Why is reexamination considered not very effective? Well, for one thing, it has to be requested within three months of the issuance of a patent, unless the Director of the Patent Office decides to on his or her own initiative. [sic, IPBiz: !!] The Director can trigger a reexamination at any time. This serves as an important safeguard in truly unusual or egregious situations, but one that’s tempered by the fact that the Director presumably is a disinterested third party. Post-grant review can be requested by an infringer at any time, throughout the life of the patent, if the patent is likely to cause the infringer “significant economic harm.” There is, therefore, little incentive for interested third parties to participate at the front end of the process when patents are issued. The result is unnecessary risk for innocent third parties who participate in the marketing of new products and processes, such as investors, employees and suppliers. Most if not all decisions of government agencies must be appealed within limited timeframes such as 30, 60 or 90 days, because finality is what allows people to get on with their lives and plan for the future.

For the record, current re-examination rules allow a request for re-exam to be made anytime during the lifetime of a patent. The grounds to seek re-exam are more narrow than the grounds that WOULD BE allowed in the proposed post-grant opposition procedure AND the post-grant opposition procedure would be MUCH MORE EXPENSIVE than current re-exams.


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