2016 Articles

Staying Litigation for Covered Business Method Post-Grant Reviews

Stroud, Jonathan

The America Invents Act of 2011 dramatically altered U.S. patent law, adding three new trial-like procedures by which aggrieved parties have a means of administratively challenging the patentability of issued patents. With one type— the covered business method (CBM) review—Congress sent a message that a certain subset of patents is likely unpatentable and deserves special consideration. Congress also dictated how courts were to analyze stays related to covered business methods during post-grant review, which begs the question: did the AIA change the law of district court stays in light of co-pending office proceedings, substantively or practically? Here, I will analyze early cases and interlocutory appeals under section 18-controlled CBM stays in district courts, ultimately finding that the AIA has led to a near-unified grant of properly brought stays.