Return to Sender: A Case for Allowing Agencies to Initiate Post-Grant Review Proceedings

22 Wake Forest J. Bus. & Intell. Prop. L. 283

Enacted in 2011, the Leahy-Smith America Invents Act (“AIA”)
overhauled the United States patent system with the purpose of
establishing more efficient procedures, improving patent quality, and
limiting unnecessary litigation costs. The AIA also created three new
types of post-grant review proceedings available before the Patent Trial
Appeal Board (“PTAB”): inter partes review, post-grant review, and
covered business method review. These proceedings, as defined within
the AIA, permit any “person” to petition the Patent Office to reconsider
the validity of a previously granted patent. Eight years after the
legislation’s enactment of the AIA, the Supreme Court considered
whether the federal government is a “person” capable of petitioning the
PTAB to institute patent review proceedings in Return Mail, Inc. v.
United States Postal Service. The Court held it was not.