VII.  Conclusion

The authors believe that, in light of the Japanese and Chinese post-grant opposition experiences, the proposed United States opposition system should not be enacted.  To fulfill the need for an effective mechanism for challenging patents in the United States, the authors propose that a non-time limited invalidation system be enacted instead within an expanded inter partes reexamination framework.  The proposed proceeding would be somewhat of a hybrid system, combining many of the beneficial aspects of the proposed United States opposition system with the existing inter partes reexamination system.

The proposed system would be consistent with the Japanese and Chinese systems, but would accommodate issues unique to the United States patent system that differentiate it from the European patent system.  The proposed invalidation system would effectively satisfy the goals of the Patent Reform Act of 2005 by providing a speedy, simple, low cost, and efficient method of challenging United States patents to increase their quality and certainty.  It would also provide third parties potentially facing patent infringement litigation with an alternative and less costly means to challenge patent validity.  In addition, the proposed invalidation system will obviate the overlap and redundancy associated with having both a United States post-grant opposition system and an inter partes reexamination system.  This will result in more effective utilization of precious PTO resources, while improving the functioning of the patent system overall.

The authors hope that the invalidation system framework set forth in this article will serve as a useful starting point for designing a simple and effective system for challenging patent validity within the PTO that will be widely utilized when it is implemented.