Under the 2011 America Invents Act, certain Covered Business Method Patents (CBM) can be broadly challenged as part of a Post-Grant Review (PGR). CBM filing was opened on September 16, 2012 – 1 year after AIA enactment. So far, about 600 CBM petitions have been filed.
The CBM program is “transitional” — and is set to sunset (i.e., become inactive) soon. Under the law, the program sunsets “upon the expiration of the 8-year period beginning on the date that the regulations … take effect.” That takes us to September 16, 2020 — CBM Sunset Date. The particular language of the law indicates that Section 18 of the AIA is “repealed” as of the sunset date. However, the provision will still apply to “any petition … filed before the date.”
So, get your petition filed by the 16th of September 2020.
I’ll add a couple of notes.
- A powerful aspect of the CBM program is that the patents can be challenged on any ground (including patent eligibility) whereas inter partes review (IPR) proceedings are tightly limited to anticipation and obviousness grounds based upon patents and printed publications. Post-Grant Review will still be available, but there is a very tight window for filing such a petition (within nine months of patent issuance).
- I believe that the last day to file is Sept 16, but I have not fully analyzed this — so do some of your own legwork if you want to wait for the deadline.
The Transitional program of Post-Grant Review (PGR) for Business Method (CBM) patents was created in 2011 and is set to Sunset in September 2020.
Question – Should Congress Extend the program for at least a few more years?
— Dennis Crouch (@patentlyo) August 10, 2020