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« AIA Overview: Prior User Rights Defense | Main | BIO IPCC Fall Conference »

October 20, 2011

Comments

Interestingly, proof of fraud in obtaining a patent is not among the bases for post-grant review.

Kevin,

I believe that your analysis of the scope of estoppel arising from post-grant review is incorrect. You state that §325(e)(2) "does not raise an estoppel against any defense under 35 U.S.C.§282(b) in infringement litigation, however." §325(e)(2) references "a civil action arising in whole or in part under section 1338 of title 28" which is not limited to declaratory judgment actions. Section 1338 of title 28 is the jurisdictional provision relating inter alia to patents and provides that "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks." I don't see how this limits post-grant review estoppel to declaratory judgment actions.

Do you think this provision will have a chilling effect on venture funding for startups? Or, is it no worse than the current uncertainty of patent grant for early stage companies?

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