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Post-Grant Proceedings Before the USPTO
After a U.S. patent issues, it can be challenged at the USPTO through inter partes review, post-grant review or ex parte reexamination, and corrected by its owner through supplemental examination, reissue, a certificate of correction or a disclaimer.
Proceedings
Proceedings by Party
The available proceeding depends on who requests it, how long ago the patent issued and the grounds raised.
Third-Party Challenges
Proceedings available to accused infringers, competitors and other third parties.
- Post-grant reviewFirst 9 monthsAny invalidity ground, including §§ 101 and 112, for first-inventor-to-file patents.
- Inter partes reviewAfter 9 monthsAnticipation and obviousness on patents and printed publications. A full PTAB trial.
- Ex parte reexaminationAny timeA lower-cost request on prior patents and publications, with no estoppel.
Patent Owner Proceedings
Proceedings available to the patent owner to correct, narrow or confirm a patent.
- Supplemental examinationAny timeHave new information considered, and limit later inequitable-conduct attacks.
- ReissueBroaden within 2 yearsCorrect errors that make the patent inoperative or invalid, or adjust claim scope.
- Certificate of correctionAny timeFix clerical, typographical or minor mistakes.
- DisclaimerAny timeGive up a claim, or the end of the patent term.
Timing
Availability Over the Life of a Patent
Filing periods for each proceeding, from grant to expiration.
Reference
Reference Materials
- ChartPost-Grant Proceedings Comparison ChartWho can file, when, grounds, timelines and estoppel in one table.
- The tribunalThe Patent Trial and Appeal BoardPanels, AIA trials, ex parte appeals and Director Review.
- Case lawPTAB DecisionsPrecedential, informative and representative decisions, organized by issue.
- Primary sourcesUSPTO and AIA LinksDirect links to 35 U.S.C., 37 C.F.R. and USPTO guidance.
Questions
Frequently Asked Questions
What is a post-grant proceeding?
A post-grant proceeding is a USPTO procedure that lets a third party challenge an issued patent, or lets the patent owner correct or confirm it. Examples include inter partes review, post-grant review, ex parte reexamination, supplemental examination and reissue.
What is the difference between IPR and PGR?
Post-grant review must be filed within nine months of grant and can raise almost any invalidity ground, but only against first-inventor-to-file patents. Inter partes review is available after that window and is limited to anticipation and obviousness based on patents and printed publications.
Who decides post-grant trials?
The Patent Trial and Appeal Board (PTAB), an administrative tribunal within the USPTO. Final written decisions can be appealed to the U.S. Court of Appeals for the Federal Circuit.