After undertaking its first post-grant review (PGR) since the passage of the America Invents Act (AIA), the Patent Trial and Appeal Board (PTAB) invalidated two patents last Monday. Citing the 2014 Alice decision, the board ruled that patents 8,660,888 and 8,725,557 claimed patent-ineligible abstract ideas, and that the ‘557 patent was obvious over the prior art.
The patents had been granted to Leachman Cattle of Colorado LLC. In its petition for review, the American Simmental Association challenged that Leachman’s method of “determining an animal’s relative economic value based on its genetic and physical traits” was not patent eligible.
Although PGR petitions are rare relative to inter partes review (IPR) petitions, which have garnered much attention of late, last week’s decision highlights the main difference between the two types of proceedings: IPR only allows for challenges based on a limited number of grounds such as obviousness and anticipation, while PGR may be based on any invalidity challenge.
Now that a successful PGR has been decided, it will be interesting to see whether more of these are filed as patents continue to issue post AIA.