Scales of justice
Benjamin J Lehberger, St Onge Steward Johnston & Reens LLC, looks at patent challenges in the pharmaceutical industry and a recent trend of investment companies challenging the patents of foreign pharmaceutical manufacturers.
The 2011 America Invents Act brought several new options for challenging the validity of patents in the US. The most widely used option to date has been Inter Partes Review (IPR), which is a trial-like proceeding for challenging a patent on prior art grounds before the Patent Trial and Appeal Board (PTAB) in the US Patent Office. The new mechanism has drawn unexpected (and likely unintended) parties into patent challenges: speculators seeking to invalidate patents in order to affect the patent-holder’s stock price. Publicly traded companies in industries that rely heavily on patents to protect their markets are particularly vulnerable to this new challenge.