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Will the Supreme Court Nix Reviews of Bad Patents?

By Pamela Samuelson

Communications of the ACM, Vol. 61 No. 3, Pages 27-29

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"Bad" patents have been a plague to many in the software industry. Patents can be "bad" for numerous reasons. Although patents are supposed to be available only for new and inventive advances, sometimes it is difficult for examiners to locate the most relevant prior art. Not knowing about this art may cause them to approve patents that should not have been issued. Sometimes claims are too abstract or vague to be eligible for patents, or are deficient in other ways.

To address the bad patent problem, most developed countries have created administrative procedures so that third parties can challenge the validity of patents by asking a patent office tribunal to re-examine the patents. Post-grant review procedures are cost-effective ways to get rid of bad patents without having to go through full-dress, multiyear, very expensive litigation and appellate review. Patents that survive post-grant reviews are "stronger" for having gone through this extra scrutiny.


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