Again, the inventor gets slammed
I view contested reexam as a two-edged sword, and while on balance I think that the version in S.507 is bad for inventors, it would be one of the last titles of the bill that I would dump if I was czar of all Washington.
The reasons I view contested reexam as bad are relatively simple--
(1) Many inventors cannot afford the higher expense of contested reexam.
(a) Expenses will be higher because
(b) But litigation is even more expensive; so why isn't it preferable to "get it over with" in the PTO? Because:
(2) The right of the reexam requester to appeal means that any contested reexam cannot be concluded in less than about 2-3 years, given the present backlog at the board of appeals.
(3) The PTO is not set up to resolve inter partes disputes well.
The potential benefit to decently funded patent holders from contested reexam, on the other hand, is that many issues can be decided without litigation. To the extent that contested reexam is controlled and binds the reexam requester in subsequent court proceedings, there is potential benefit. But on balance, I believe that the risks of abuse outweigh the potential benefits.
--Patent Attorney Louis J. Hoffman
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Page last updated 11/12/98