Inter Partes Review to be more favorable to biotech

The U.S. Patent and Trademark Office (PTO) finalized a rule requiring higher standards for invalidating patents through inter partes review (IPR) petitions, a victory for biopharma companies and other industries that depend on strong patent rights. The new rule will go into effect in November.

Melissa Brand, associate counsel and director for IP policy at BIO, told BioCentury, "This is definitely good news for advocates of stronger patent rights and for the patent system as a whole, as it will provide more predictability for all stakeholders."

Currently, PTO's Patent Trial and Appeal Board (PTAB) uses the broadest reasonable interpretation standard for patent claim construction. Federal courts use a narrower Phillips claim construction standard, and the industry has previously argued that having a lower bar for patent challenges through PTAB erodes patent protections (see "PTO Leveling IPR Field").

Brand said BIO had advocated for the rule to be implemented retroactively but "based on public comments, the PTO decided to make the rule only prospective as of the date the rule goes into effect."