Post-Grant Opposition Proceeding in the USPTO (Sec. 6)

Establishes a Post-Grant Review Proceeding where filing must be made within 12 months after grant and completed within a year of when it is initiated. A "second window" is then available for the remainder of the 20 year patent terms and can be triggered upon a showing of:
  • A substantial reason to believe that the continued existence of the challenged claim in the petition causes or is likely to cause the petitioner significant economic harm;
  • Receipt of infringement notice from a patent holder; or
  • Consent of the patent owner in writing. USPTO is also required to conduct a study on the proceeding's effectiveness to submit to Congress.

The PIA Viewpoint

The provision would devalue a patent after it has been granted by allowing any party – foreign or domestic – to block its exclusive use by tying it up in this review period, which could be infinite. The patent loses all value if it is continually challenged by multiple parties who will now be given equal treatment in the process regardless of their merits. Any challenge should be limited to prior art not of record. In other words, new research – prior art – must be presented.

A much better approach is to improve USPTO operations to ensure that all prior art is uncovered during the examination process.