An IPR petition can be filed starting 9 months after the patent grant date or after termination of a Post Grant Review. (If the patent does not qualify for Post Grant Review, the IPR petition can be filed before that 9-month date.)
An IPR cannot be instituted if the petition requesting an IPR is filed more than 1 year after the date on which the petitioner, real party-in-interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.
Threshold
There is “a reasonable likelihood that petitioner would prevail with respect to at least 1 claim of the claims.”
Scope
Petitioner may raise arguments under 35 U.S.C. §§ 102 and 103 (anticipation and obviousness, respectively), based on patents and printed publications.
Applicability
Applies to all patents.
Estoppel
A petitioner in an IPR may not assert that a claim is invalid on any ground that the petitioner raised or “reasonably could have raised” in the IPR in a subsequent district court or ITC action. In addition, a petitioner may not request or maintain a subsequent proceeding before the PTO with respect to any challenged patent claim on any ground raised or that reasonably could have been raised.
A patent owner is estopped from taking actions inconsistent with an adverse judgment, such as obtaining a claim in a patent that is patentably indistinct from a finally refused or cancelled claim.
