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According to a recent blog post on AVC.com:

"Section 18 of last year's America Invents Act provides for a "post-grant review proceeding for review of the validity of covered business method patents.""

If you are sued or threatened with a suit over a business method patent, you can submit the business method patent to the USPTO for a "post grant review." If the USPTO determines that patent is overly broad or should not have been issued, it will be thrown out in its entirety.

SEC. 18. TRANSITIONAL PROGRAM FOR COVERED BUSINESS METHOD PATENTS.

My question is what the time period is to get the review? In other words, if a patent is issued, how long after the patent is issued can someone ask the USPTO for the "post-grant review proceedings"?

It would seem that if the time period is only 1 year (as Fred Wilson states), that affords little protection as a company issued a patent could simply wait 1 year before trying to enforce it.

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The post grant business method review is not the panacea that you were hoping for. While there is no "time limit" on filing these post grant reviews, the statute very narrowly defines business method patents to only include non-technological financial services patents. From the statutory definition:

(1) IN GENERAL.--For purposes of this section, the term “covered business method patent” means a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.

Section 18.

A second problem with the post grant business method review is that the fee for filing such a review is - at minimum - $35,800. USPTO Fees.

There are other options available such as "inter partes review" and "ex parte reexamination." Anyone considering any of these approaches will want to discuss options with a patent attorney who is experienced with post-grant challenges as these options are essentially alternate forms of litigation.

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  • Thanks for your reply. Tried to upvote but apparently as a new user I don't have enough "rep" yet.
    – LE-
    Commented Sep 26, 2012 at 19:53
  • @Dennis, What is the justification for such a high cost? Are there any notions in reducing the fee in the future? (Btw, "USPTO Fees" link is broken.)
    – Pacerier
    Commented Oct 10, 2015 at 21:49

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