2013年1月16日 星期三

IPR取代Inter Partes Reexamination的35USC314

美國專利改革新制提出IPR異議制度(可參閱:http://enpan.blogspot.tw/2012/08/blog-post_8.html),取代了原本的多方再審制度,相對也修改了對應法律35 U.S.C. 314:

美國專利法第314條規範IPR的制度:
(a) 除非提出的異議條件為合理而可能成功讓至少一項專利範圍無效,否則可能會被退件;
(b) USPTO Director應於接獲IPR申請3個月內作出是否受理的決定;
(c) USPTO會同時通知IPR請求人與專利權人;
(d) 上述決定不能被挑戰。

[原文]
35 U.S.C. 314 Institution of inter partes review Conduct of inter partes reexamination proceedings

(a) THRESHOLD.--The Director may not authorize an inter partes review to be instituted unless the Director determines that the information presented in the petition filed under section 311 and any response filed under section 313 shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.
(b) TIMING.--The Director shall determine whether to institute an inter partes review under this chapter pursuant to a petition filed under section 311 within 3 months after--
(1) receiving a preliminary response to the petition under section 313; or
(2) if no such preliminary response is filed, the last date on which such response may be filed.
(c) NOTICE.--The Director shall notify the petitioner and patent owner, in writing, of the Director's determination under subsection (a), and shall make such notice available to the public as soon as is practicable. Such notice shall include the date on which the review shall commence.
(d) NO APPEAL.--The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.
(a) IN GENERAL.- Except as otherwise provided in this section, reexamination shall be conducted according to the procedures established for initial examination under the provisions of sections 132 and 133. In any inter partes reexamination proceeding under this chapter, the patent owner shall be permitted to propose any amendment to the patent and a new claim or claims, except that no proposed amended or new claim enlarging the scope of the claims of the patent shall be permitted.
(b) RESPONSE.-
(1) With the exception of the inter partes reexamination request, any document filed by either the patent owner or the third-party requester shall be served on the other party. In addition, the Office shall send to the third-party requester a copy of any communication sent by the Office to the patent owner concerning the patent subject to the inter partes reexamination proceeding.
(2) Each time that the patent owner files a response to an action on the merits from the Patent and Trademark Office, the third-party requester shall have one opportunity to file written comments addressing issues raised by the action of the Office or the patent owner's response thereto, if those written comments are received by the Office within 30 days after the date of service of the patent owner's response.
(c) SPECIAL DISPATCH.- Unless otherwise provided by the Director for good cause, all inter partes reexamination proceedings under this section, including any appeal to the Board of Patent Appeals and Interferences, shall be conducted with special dispatch within the Office.

Ron
資料來源:bitlaw

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