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CBM Reviews May Fade Away As Fed. Circ. Limits Reach

Law360

10 Mar 2017
Reprinted with permission.

In this Law360 article, “CBM Reviews May Fade Away As Fed. Circ. Limits Reach,” Morrison & Foerster partner Matthew Kreeger, co-chair of the firm's Inter Partes Review and Post Grant Practice, was quoted on The America Invents Act’s covered business method review program’s future. It has been a popular way for accused infringers to target patents they believe are invalid under Alice, but recent Federal Circuit rulings restricting when the program can be used may cause interest to dwindle, attorneys say.

The rulings show that "maybe in the euphoria of a new regime, the patent office pushed it pretty far" in terms of what it chose to review under the CBM program, said Matthew Kreeger.

Both IPRs and CBMs are favorable to challengers, but in IPRs, 17 percent of final decisions result in all the instituted claims surviving, while all or some of the claims are invalidated 83 percent of the time. In CBMs, all the claims survive in only 3 percent of final decisions, and all or some of the claims are invalidated 97 percent of the time.

"Getting a CBM going is great as a petitioner. It seems like really all of the patents challenged by CBMs are going down if they are instituted," Kreeger said.

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