Emily N. Weber


The function of the United States Patent and Trademark Office (“USPTO”) is to promote the industrial and technological innovation of the nation and strengthen the economy through the preservation, classification, and dissemination of patent information. The America Invents Act (“AIA”) prescribed a multitude of supporting goals to best promote innovation, such as preserving “quality patents,” “timely consideration” of issues, maintaining “cost-effective” methods, preventing “frivolous litigation,” and preventing “uncertainty.” The AIA ensures the “efficiency, objectivity, predictability, and transparency” of the patent system. Part of this act included revamping the adjudicatory forum located within the USPTO, the Patent Trial and Appeal Board (“PTAB”), a body that decides patentability questions via AIA trials. One type of is Inter Partes Review (“IPR”), a post-grant review proceeding. IPR has the potential to promote innovation and support the many goals of the AIA. However, that potential is unrealized. This is in part because the policies surrounding IPR are heavily influenced by the discretion of the acting USPTO Director (“the Director”). This discretion has allowed external factors, such as trial dates of district court litigation, to greatly affect the effectiveness of IPR. In the past decade, institution of IPR has been inefficient, subjective, unpredictable, and not transparent. This Note explores the relationship between IPR and the discretion of the Director, the consequences of that relationship, and how that relationship is influenced by external factors.

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