USA – CALIFORNIA Trends and Developments Contributed by: Michelle E. Armond, Douglas R. Wilson, Monica M. Arnold and Amy Han, Armond Wilson LLP
of inter partes reviews (IPRs) plummeted. This drop in IPRs is leading to an increase in patent litigation in California and other courts. IPRs came into being when the last round of patent reform 15 years ago provided a new avenue for resolv- ing patent disputes at the US Patent Office. Previ- ously, patent validity had been determined either as part of federal court patent infringement lawsuits or through slower Patent Office ex parte or inter partes re-examinations. The 2011 America Invents Act (AIA) created additional options for streamlined patent validity challenges at the Patent Office, notably IPRs. This new federal law allowed anyone to challenge the validity of an issued patent for anticipation or obviousness based on pri- or art patents and printed publications. With limited discovery, a lower burden of proof and a 12-month statutory deadline, IPRs offered a faster and cheaper method for deciding patent validity disputes. When the Patent Trial and Appeal Board opened for business in late 2012, IPR filings surged, and they have maintained their popularity ever since. In fiscal year 2024, the Patent Office ordered trials in response to about 68% of IPR petitions requesting them. That has now all changed. New policy directives from Washington, DC aimed at strengthening US innova- tion have discouraged IPRs and are pushing validity disputes elsewhere, including to California and other federal courts or to traditional re-examination, as dis- cussed in the sections below. In October 2025, the newly confirmed Patent Office Director began actively deciding IPR petitions, turn- ing away many challenges. The number of IPR trials ordered dropped to their lowest level since the AIA established them. As a result, IPR filings have dropped precipitously. Only 11 petitions were filed in April 2026, far beneath the average rate of 80 to 130 petitions per month dur- ing the preceding five years. See, for example, Dennis Crouch, Decimation : Ex Parte Reexamination Eclipses the IPR , https://patentlyo.com/patent/2026/05/deci-
mation-ex-parte-reexamination-eclipses-the-ipr.html (last visited 16 June 2026). Re-examination resurges Another fast-evolving landscape impacting California involves conventional ex parte re-examinations. With IPRs in retreat, the Patent Office is witnessing a surge in third-party re-examination requests and concurrent requests to stay parallel patent litigation involving oth- er patents in California and other courts. Like IPRs, re-examinations also allow third parties, as well as patent owners themselves, to ask the Patent Office to reconsider the validity of issued US patents. The process is initiated by submitting a request asking a patent examiner to evaluate whether the prior art raises a “substantial new question of patentability”. Unlike IPRs, however, once initiated, the re-examina- tion proceeds ex parte without the participation of any third-party requestor or strict statutory deadline. The re-examination then proceeds somewhat like the orig- inal patent examination, with the examiner engaging directly with the patent owner by rejecting, amending and/or allowing claims. Recent data shows that ex parte re-examination requests rose sharply in 2025, concurrent with IPR requests plunging. According to Patent Office official data, ex parte re-examination requests had previously held steady, with about 50 to 100 requests filed per quarter since fiscal year 2022. This began to suddenly change at the end of 2025. The first and second quar- ters of fiscal year 2026 saw over a 200% spike in re- examination request filings: approximately 275 in Q1 and 250 in Q2 2026, compared to approximately 95 and 75 requests in Q1 and Q2 of 2022, respectively. See Reexamination Statistics , https://www.uspto. gov/learning-and-resources/statistics/reexamination- information (last visited 16 June 2026). As one commentator put it, patent challengers are getting the message that, without IPRs, “what the data show is that re-examination is better than noth- ing”. See https://patentlyo.com/patent/2026/05/dec- imation-ex-parte-reexamination-eclipses-the-ipr.html (last visited 16 June 2026).
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