Patent reform is here, and havoc will reign. The America Invents Act has many new provisions to test patent law and patent lawyers for years to come. One of them is the new procedure for challenging newly issued patents, in what is called the Post-Grant Opposition procedure.
I hope the US Patent and Trademark Office will heed my urgent advice: Whatever you do, do NOT set up a three-judge panel system to hear each case. I can see it so clearly. It's as if I've read about it somewhere before, residing in the mystic chords of my ever-fading memory. Consider the chaotic preparation for the first hearing before the panel. Attorneys will be unfamiliar with this brand-new process, and possibly the judges. ASSOCIATE: Good morning, sir. I thought I'd brief you on the judges who will be hearing this historic, first case. Then I can tell you more about their past decisions and discuss procedures more. As you face them, Judge Watt will be first, on the left, then Judge Donough, and then, on the right, Judge Hu. We expect the judge on the left will have the first question, then the second and finally the third. PARTNER: Uh, wait, who are they again? ASSOCIATE: Watt is first, Donough second and Hu's on third. PARTNER: And, who's on first? ASSOCIATE: No. I said Hu's on third. PARTNER: That's what I want to find out. And who's on second? ASSOCIATE (patiently): No, Hu's on third. PARTNER: I mean what's the fellow's name! ASSOCIATE: No, not "Watt", 'Hu." PARTNER: I'm not in the mood for a grammar lesson. Who's the guy sitting second? ASSOCIATE: Donough. PARTNER: You don't? ASSOCIATE: I don't what? PARTNER: Don't know? ASSOCIATE: Yes, sir. PARTNER: You want me to look at -- ASSOCIATE (simultaneously): Hu . . . PARTNER (simultaneously): -- who, and then address -- ASSOCIATE (simultaneously): Watt. PARTNER (simultaneously): -- what? ASSOCIATE (relieved): Now you've got it! PARTNER: I don't even know what you're talkin' about! ASSOCIATE: But that's all you have to keep in mind. PARTNER: But who's the one in the middle? ASSOCIATE: Not Hu. Donough. PARTNER: Don't know? ASSOCIATE: Naturally! PARTNER: Who is? ASSOCIATE: Nope. Not yet. Donough. I'm telling you he is up second. PARTNER: You're telling me but you don't know? ASSOCIATE: I do know. Donough. PARTNER: What? ASSOCIATE: He's first, although Hu will probably write the first opinion, being senior judge. PARTNER: Who will? ASSOCIATE: Sure. Why not? He deserves the credit. PARTNER (defeated): I don't think I'm going to get this right. ASSOCIATE: That's right. Wright is wrong. She's on a different panel.