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- Title
CONFIRMATION BIAS AND THE DUE PROCESS OF INTER PARTES REVIEW.
- Authors
DOYLE, NICHOLAS J.
- Abstract
In 2012. the Leahy-Smith America Invents Act was signed into law with the objective of providing fast and inexpensive ways for third parties to challenge the validity of issued patents in front of the Patent Trial and Appeal Board. The most popular of these procedures, the inter partes review, involves a panel of judges that determine if the petitioner, the challenger of a patent, is likely to win before any evidence is collected. The same panel, after briefing and an oral argument, then decides the validity of the patent. The structure of this initial determination-- called institution--has led many to question the fairness of these proceedings; a complaint that is strengthened by statistics showing that patent owners are nearly twice as likely to lose their patents as not in inter partes review. While the perception of partiality has long permeated the profession, the literature remains silent regarding whether this specific enactment of the America Invents Act by the Patent and Trademark Office was done in a way that infringes upon a patent owner's due process when they are deprived of their patent by an inter partes review. This Article fills that void by introducing the idea of confirmation bias, a long investigated psychological phenomenon that occurs in decision makers, and analyzing whether such a bias is likely held by an Administrative Patent Judge. Finding this to likely be the case, the Article then undertakes a Mathews test to determine if inter panes review helmed by these judges affords patent owners due process before the deprivation of then patent. Creating a process for invalidating inappropriately issued patents that is fast and inexpensive is imperative for not only the field of patent law. but for advancing the American economy through robust innovation. However, this process must be fair and respect the property rights that are bestowed upon patent owners at the issuance of the patent.
- Subjects
UNITED States; CONFIRMATION bias; DUE process of law; UNITED States. Patent Trial &; Appeal Board
- Publication
IDEA: The Intellectual Property Law Review, 2017, Vol 57, Issue 1, p29
- ISSN
0019-1272
- Publication type
Article