American Simmental Association v. Leachman Cattle (PGR2015-00003): An Early Post-Grant Review

American Simmental Association v. Leachman Cattle of Colorado, PGR2015-00003, belongs to the first small group of post-grant review petitions filed with the Patent Trial and Appeal Board. The petitioner was a breed association; the patent owner was a cattle business. That alone made it different from the technology and pharmaceutical disputes that dominated the Board’s early docket.

This page uses the case as a window on how PGR worked in its first years. It does not describe the patent beyond the parties or state how the proceeding ended.

Early PGR Filings

The first PGR petition, LaRose Industries v. Choon’s Design, was filed in 2014, and Accord Healthcare v. Helsinn followed later that year. The low case number of American Simmental, at the start of the PGR2015 series, reflects how few PGR petitions had been filed by then, compared with the steady stream of inter partes review petitions.

The reason was eligibility. PGR is available only for patents subject to the AIA’s first-inventor-to-file rules, meaning patents with at least one claim having an effective filing date on or after March 16, 2013. The petition must also be filed within nine months after grant or reissue (35 U.S.C. § 321(c)). In 2014 and 2015, few such patents had issued, and each was open to PGR only briefly.

What the early petitions show

The early PGRs, taken together, show several features of the proceeding that remain true today:

• Eligibility must be established. Each petition had to show the patent was a first-inventor-to-file patent and that the petition was timely. For early patents with mixed priority claims, that could itself be contested.
• Grounds are broad. Under § 321(b), a petitioner may raise any invalidity ground under § 282(b)(2) or (3), including § 101 and § 112, not only the patents-and-printed-publications grounds of inter partes review.
• The threshold is higher. Institution requires a showing that it is more likely than not that at least one challenged claim is unpatentable, or a novel or unsettled legal question important to other patents (§ 324).
• The petitioner must be identified fully. As in IPR, the petition must name every real party in interest (§ 322(a)(2)). Where a trade group or association files, that question can draw attention; see who is the real party in interest.
• Estoppel is broad. After a final written decision, the petitioner is estopped from later asserting grounds it raised or reasonably could have raised (§ 325(e)), which in PGR can include nearly any invalidity theory.

Who uses PGR

The early petitioners were not only large technology companies. A challenger to a craft-toy patent, a generic drug company and a breed association each used the proceeding. Because PGR must be filed shortly after grant, it tends to suit parties who monitor newly issued patents in their field, including industry groups. For more on how PGR and IPR compare, see PGR vs. IPR.

Key takeaways

• American Simmental Association v. Leachman Cattle of Colorado, PGR2015-00003, was one of the earliest PGR petitions.
• Few PGRs were filed at first because only first-inventor-to-file patents qualify, and the nine-month window is short.
• PGR allows §§ 101 and 112 challenges that IPR does not, but carries a higher institution threshold and broader estoppel.
• Early petitioners ranged from competitors to an industry association.