After litigation has started, post-grant proceedings can be used by a defendant to try to control the costs of the litigation, try to control timing of the litigation, and also try to effectuate settlement. The reason that post-grant proceedings are very valuable in this regard is that they’re much less expensive than a full-fledged patent infringement suit. One important timing consideration that you have to bear in mind is that if you’ve been sued for patent infringement, if you’re attempting to get a stay in light of that litigation filing, sooner is always better for filing post-grant challenges and then requesting the court stay the proceeding.

One other timing consideration that must be born in mind is that you can’t file post-grant challenges without regard to certain timing constraints under statute. For example, you have up till one year from the service of the complaint alleging infringement to file an inter partes review, or IPR. There are other timing considerations that must be born in mind as well. For example, a post-grant review cannot be filed more than nine months after issue of a patent. So in cases where a patent is asserted almost at the same time as issue, you have nine months to file a PGR or post-grant review. If you fail to file that within that timeframe, you still have the remaining three months of that year to file an inter partes review. And there are options for filing covered business method reviews outside of those time intervals, but the patent, again, has to qualify for covered business method standing.