The IPR may be requested by a third party, but that party must identify itself as a real party in interest and set forth the pertinency and manner of applying the cited prior art to every claim for which the review is requested. The IPR is available for any unexpired patent that has been issued for more than nine months, and is not undergoing the PGR. The standard for initiating the IPR, i.e., that there is a “reasonable likelihood that at least one of the claims challenged in the petition is unpatentable,” is more stringent than the standard for granting the EPR request. The IPR has the 50/50 chance of at least one of the claims invalidated. In the IPR, the third party requester may submit declarations of supporting evidence and opinions, and additionally has a right to an oral hearing. Limited discovery is available regarding evidence “directly related to factual assertions advanced by either party.” Both parties will also have the opportunity to appeal any adverse final decision. Although limited to challenges based on novelty and obviousness over patents and printed publications previously not considered, the IPR is a highly valuable alternative to expensive litigation.
Cardinal can help you with any of the following in preparing the request for the IPR: