Strategic Considerations in the Parallel Universe of Patent Reexamination and Patent Litigation
Published in the July/August 2010 issue of IP Litigator
Parties to patent disputes increasingly find themselves facing the complex issues that arise when a patent at issue in litigation is in concurrent reexamination proceedings before the United States Patent and Trademark Office (PTO). In these situations, the same patent claims may be analyzed and interpreted with different outcomes due to the differences between the two forums and their applicable timelines, rules, and purposes, and because different participants and decision-makers are involved. These differences substantially affect the ability of patent holders to enforce their patent rights and the ways that accused infringers can defend themselves against potentially invalid patents.