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The Post-Grant Problem: America Invents Falling Short

Prior to the passage of the Leahy-Smith America Invents Act (AIA), the United States operated a patent system that was in many ways unique among developed nations. The patent prosecution system in the United States was a slow, inefficient process. Patents were frequently invalidated, and those that were not invalidated required an inordinate amount of time and resources to defend. In an attempt to address these issues, Congress passed AIA. Under the new system many of the differences between the U.S. patent system and the European patent system have been harmonized, a new post-grant review process has been established, and the ability of third parties to participate has been significantly increased. The goal of this Note is to determine whether the new post-grant system established under AIA will ameliorate the issues identified by Congress as problematic within the current patent regime. Part I of this Note will describe the current international framework for patents as established by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the current United States patent regime, the current European patent regime, and the changes to the U.S. patent regime made by AIA. Part II compares the changes made by AIA — in particular changes regarding the new post-grant review — to the European system they are modeled after. Part III identifies failures and proposes a more selective pre-grant review system to address the failures. This Note concludes that, while the new patent regime created by AIA takes important steps towards addressing patent strength and litigation issues, under the current legal system a more stringent pre-grant review is necessary to meet the goals of AIA.