Exploring the Pros and Cons of a Covered Business Method Review

Contrary to popular belief, patents are not limited to new technology. The United States Patent and Trademark Office (USPTO) also grants patents for new business processes, methods, and operations.

One of the best examples is the assembly line invented by Henry Ford, founder of the Ford Motor Company. It was a patented business process. The question is – how do you question the validity of such patents?

Business method patents protect non-technical intellectual property. They cannot be subject to the same scrutiny as technical patents. They need a completely different review system.

That’s where the covered business method review comes in. Consider it a post-grant review (PGR) designed only for reviewing and challenging business methods.

What Is Covered Business Method (CBM)?

The America Invents Act (AIA) laid down three procedures for reviewing a patent after it is granted. They include inter-partes review (IPR), post-grant review (PGR), and covered business method (CBM). However, the CBM is designed for challenging business method patents. It’s particularly useful in questioning the validity of patents related to financial products or services.

It is similar to how a patent litigation would ordinarily work in a federal district court. However, the Patent and Trial Appeal Board (PTAB) handles this litigation at the USPTO. When the PTAB receives a covered business method petition, they have to review it and determine the validity of the patent in question. This trial is called the covered business method review.

Pros of Pursuing a Covered Business Method Review

Although similar to IP litigation, the covered business method review offers a few unique advantages. These advantages help petitioners and patent owners resolve their issues quickly. The most common pros of a CBM review include:

1. Cost-Effective Option

Unlike traditional patent litigation, covered business method review is rather cost-effective in terms of time and money. It usually wraps up faster. The shorter timeline and simplified process means you spend less money and get results quickly. That’s why it’s a more attractive option for those challenging business method patents.

2. Broader Grounds for Challenge

Another critical benefit of covered business method review is the broader grounds for challenging a patent. For one, the CBM applies to the first-inventor-to-file and first-to-invent patents. On the other hand, a PGR applies only to first-inventor-to-file patents.

Also, as a petitioner, you can use more grounds for challenging patents, like prior art. This flexibility provides you with more ways to prove your argument.

3. Faster Resolution

It is one of the quickest ways to address a business patent’s validity. Typically, the PTAB will conclude a covered business method review in 12 to 18 months. That means the CBM works a lot faster than routine patent litigations.

Cons of Pursuing a Covered Business Method Review

Although the covered business method is fast and cost-effective, it has a few drawbacks. Knowing these cons can help you make an informed decision. If you are preparing to file a CBM review, remember the following disadvantages.

1. Limited Application

One of the major drawbacks of a CBM review is its limited reach. You can use this review only for certain business method patents, not every business method patent. If you file for a review of a business method patent that the CBM doesn’t cover, you’ve wasted your time and money. It’s important to talk to an attorney first before filing anything.

CBM reviews are meant to be used for patents related to financial products or services.

Talking to our covered business method lawyer can help you understand your legal options. We can check if your petition can be filed under the CBM. If not, the attorney will explain other legal options available for you. This might include a PGR, an IPR, or traditional patent litigation.

2. Narrow Scope of Review

Unlike other proceedings, such as inter partes review, a CBM review has a relatively narrow scope. It primarily focuses on patentability and eligibility. It will not delve into broader validity issues. That means this may not always be the right course of action.

3. Risk of Estoppel

Engaging in a covered business method review carries the risk of estoppel. In patent litigation, estoppel means a second argument gets barred if it contradicts your first argument. It might restrict your future arguments against a patent’s validity in other proceedings. 

Given the pros and cons involved in this process, you should consult with our covered business method lawyer. We can help you file a new business method correctly, lowering the risk of it being scrutinized and invalidated. 

Alternatively, our lawyer can help you make a compelling argument if you want to challenge a patent. In either case, seeking professional legal counsel is in your best interest.

Contact Our Covered Business Method Lawyers Today

The covered business method review is a fast, cost-effective, and reliable way to challenge the validity of a business method patent. It also offers broader grounds for challenging a patent. 

However, the CBM has a limited scope. It applies only to a few types of business method patents. Plus, it carries the risk of estoppel. This isn’t an easy decision.

Not sure if this is the right choice for you? Our team can help you find the right legal process. Contact the covered business method lawyers at Emerson Thomson Bennett today to learn more.