The new "Inter partes review" proceedings adjudicated before the newly created Patent Trial and Appeal Board, and the new "post-grant review" process will be implemented with the Group 2 Rules of the America Invents Act. While the USPTO is still accepting comments on the Group 2 Rules, one of the major changes in these post issuance matters is the threshold for review of a petition filed under either process.
The "substantial new question of patentability" threshold previously required for inter partes reexaminations will be replaced with a "showing that there is a reasonable likelihood that the petitioner will prevail with respect to at least one claim challenged." Meanwhile to initiate the post grant review process, a petition must show that "it is more likely than not that at least one claim challenged is patentable."
While the USPTO has indicated that the two standards are in fact different, the ultimate interpretation of each remains to be seen. However, interested parties should take note that the new thresholds will represent a higher showing than pre-AIA standards.
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