Harmonized Standards Solve for Patent Validity

The PTO could take a similar approach by applying adjudicative standards for IPRs, including a presumption of validity and the district court claim construction standard, while retaining the broader examinational standards for PGRs. In principle, this would make patents harder to invalidate in IPR and would push more parties to request PGR. Logically, it seems reasonable for the Board and district courts to apply consistent standards for invalidity. Given that over eighty percent of IPR and CBMR involved patents that are concurrently litigated in court, 358Link to the text of the note IPRs might be better characterized as part of litigation than a redo of patent examination. Raising the invalidity standards for IPRs also gives patent owners greater certainty in their patent rights. As Justice Breyer noted in Oil States, there is a concern that the current AIA regime allows challenges to issued patents after patent owners have made significant investments in their inventions. 359Link to the text of the note Although this also happens when district courts invalidate patents, IPRs can be more problematic because of the lower burden of proof and broader claim construction. Under Director Iancu, the PTO has already taken steps to make IPRs more adjudicative by proposing to use the district court standard for claim construction instead of the broadest reasonable interpretation.

If the PTO adopts district court standards for IPRs, this would provide a stronger justification for a strict approach to motions to amend. As discussed in Section III, the Board's ability to independently examine claims is limited, so the PTO initially placed the burden of proof for validity on patent owners to prevent unexamined claims from issuing. 360Link to the text of the note However, recent experience shows how this [*200] practice can result in denial for the vast majority of motions to amend. 361Link to the text of the note This is problematic because, as one critic of IPRs noted, "[t]he reality for Patent Owners is that their opponents get the benefit of significantly lower standards than in district court litigation, but Patent Owners do not get the corresponding benefit of an ability to amend their claims in response to the unpatentability assertions." 362Link to the text of the note By making the standards for IPR more adjudicative and consistent with district court litigation, opponents would no longer benefit from broader claim construction or lower validity standards. Accordingly, the PTO could maintain a strict standard for motions to amend without skewing IPR proceedings in favor of petitioners.