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Post-Grant Review

This new Patent Trial and Appeal Board proceeding accommodates a broad range of patent challenges formerly subject to litigation.

Challengers file a claim within nine moths after a patent has been granted or reissued. The patent holder may file a preliminary response to this petition. A post-grant review may be granted if it is deemed that it is “more likely than not” that at least one challenged claim cannot be patented. The Board will issue its final determination on petitions under review within one year, with a six-month extension for good cause.

Because unsuccessful challengers are prohibited from attacking the patent in future proceedings, based on issues which were or reasonably could have been raised in the post-grant review, Cantor Colburn takes particular care in assessing whether a post-grant review is an appropriate course of action for a client to pursue. Should a client initiate a post-grant review, we provide astute advice and guidance throughout the proceeding.

Post-grant review relief is available for patents filed after March 16, 2013, except for covered business methods patents, which are subject to a new transitional trial proceeding that is scheduled to sunset in 2020.