Since the implementation of the America Invents Act in 2011, inter partes review (IPR) proceedings have proven useful tools for invalidating patents. In this article, Robert C. Millonig, Jr., Ph.D. and Gaby L. Longsworth, Ph.D. discuss an alternative attack for IPRs focused on challenging a patent's priority claims.
As the authors explain, IPRs restrict validity challenges to novelty or obviousness, however, in certain circumstances challenges may skirt this restriction by challenging the priority claims of a patent. By breaking priority to an earlier-filed patent application, the challenged patent may be opened up to more prior art that could be used against it for novelty or obviousness challenges.
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