등록특허의 신뢰성 강화를 위한 미국 특허법상 재심사 절차의 변화

Leahy-Smith America Invents Act of 2011 (AIA) reformed patent post grant reexamination proceedings. There are sequentially three types of patent reexaminations, Ex Parte Reexamination(EPR), Post Grant Review(PGR) and Inter Partes Review(IPR). An EPR is same to pre-AIA, so the primary requirement for obtaining a grant for reexamination is to prove that a "substantial new question of patentability" exists. For an IPR, the petitioner must demonstrate a resonable likelihood that he/she would prevail as to at least one of the claims challenged(35U.S.C. §314(a)). In contrast, for a PGR, the petitioner must demonstrate that it is more likely than not that at least one of the claims challenged is unpatentable(35U.S.C. §324(a)). The new thresholds presented in the AIA for both the PGR and inter partes review are substantially different than the current threshold for both inter partes reexamination and ex parte reexamination, which require a substantial new question of patentability. The new thresholds requiring a showing that the petitioner would “more likely than not" prevail for PGR and “a reasonable likelihood of success" for inter partes review is a higher standard for a petitioner to meet. The higher threshold for the new procedures should reduce the number of challenges to patentability to those challenges having a viable case for success. So remained valid patents after new procedures can be more reliable.