Post-Grant Review
Post-Grant Review (PGR)
A Post-Grant Review (PGR) is a process available under the America Invents Act (AIA) that allows third parties to challenge the validity of a U.S. patent at the Patent Trial and Appeal Board (PTAB) within nine months of the patent’s issuance. It is a powerful tool for invalidating patents based on a broad range of grounds.
Key Features of Post-Grant Review
Timing
Must be filed within 9 months of the patent grant or reissue.
Grounds for Challenge : Can be based on any patentability issue, including:
1- Lack of novelty (§ 102)
2- Obviousness (§ 103)
3- Lack of written description or enablement (§ 112)
4- Subject matter ineligibility (§ 101)
Standard for Institution
1- The PTAB will institute a PGR if it is more likely than not that at least one claim is unpatentable.
2- Alternatively, PGR can be instituted for novel legal questions affecting patentability.
Applicable Patents
Only applies to patents with an effective filing date on or after March 16, 2013 (AIA first-to-file system).
Comparison to Other PTAB Proceedings
Timing
Within 9 months of issuance
Grounds
§§ 101, 102, 103, 112
Standard
More likely than not at least 1 claim is unpatentable
Estoppel Effect
Broad—applies to any ground that was or could have been raised
Who Can File?
Anyone (except patent owner)
Advantages of Post-Grant Review
Advantages
- Broadest possible grounds for challenging a patent.
- Can invalidate weak patents before they gain value.
- Faster and cheaper than district court litigation.
Disadvantages of Post-grant review
Disadvantages
- Must be filed early (within 9 months).
- Can trigger estoppel, preventing later challenges on any grounds that could have been raised.
- Higher initial burden to show unpatentability.
