News & Analysis as of July 17, 2025

United States Patent and Trademark Office

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The Leahy-Smith America Invents Act is a United States federal statute enacted in 2011 aimed at simplifying the U.S. patent system and allowing inventions to be brough to market sooner. The AIA makes significant changes to the patent system, including changing from a first-to-invent scheme to a first-to-file scheme, eliminating interference proceedings and developing post-grant opposition. less -

What to Know About the PTAB’s Discretionary Denial Shakeups

Fish & Richardson on 4/1/2025

The United States Patent and Trademark Office (USPTO) has recently made several significant changes that are reshaping discretionary denials at the Patent Trial and Appeal Board (PTAB). ...more

USPTO Rescinds 2022 Guidance on Discretionary Denials

Fish & Richardson on 3/3/2025

On February 28, 2025, the United States Patent and Trademark Office announced that it has rescinded the June 21, 2022, memorandum about discretionary denials in Patent Trial and Appeal Board (PTAB) post-grant proceedings with...more

PTAB Year in Review – USPTO Rulemaking in 2024 Related to PTAB Practice and Procedures

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/18/2025

The final year of Director Vidal’s tenure as the Director of the U.S. Patent and Trademark Office was a busy year for rulemaking at the Office. Since late 2023, five Notices of Proposed Rulemaking (NPRMs) directly related to...more

PTAB AIA FY2024 Roundup: Key Insights and Statistics

Jones Day on 1/17/2025

The U.S. Patent and Trademark Office (USPTO) recently released its Fiscal Year 2024 roundup for the Patent Trial and Appeal Board (PTAB) America Invents Act (AIA) proceedings. This comprehensive report provides valuable...more

PTAB Announces Rules Formalizing Director Review

Jones Day on 4/29/2024

In 2021, following the Supreme Court’s Arthrex decision, the PTO issued an interim procedure for requesting Director Review. The PTO has now issued a Notice of Proposed Rulemaking (“NPRM”) formalizing the Director Review...more

2023 PTAB Year in Review: Analysis & Trends: The Staying Power of Fintiv: The Effect of Parallel Litigation at the PTAB in 2023

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/15/2024

In 2023, Fintiv—the precedential Order issued in 2020 that established a six-factor framework that the Patent Trial and Appeal Board (PTAB) applies when evaluating whether to exercise its discretion to institute an America...more

2023 PTAB Year in Review: Editors’ Introduction

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/12/2024

A review of 2023 reveals it was an active and impactful year in shaping the policy and practice before the Patent Trial and Appeal Board (PTAB or Board) at the U.S. Patent and Trademark Office (USPTO). In fact, all three...more

USPTO Says Prior Art Date of AIA Patents is Not Limited By Dynamic Drinkware

Foley & Lardner LLP on 12/21/2023

When Dynamic Drinkware was decided in 2015, commentators debated whether differences in the language of the American Invents Act (AIA) version of 35 USC § 102 would shield AIA patents from its restrictions. Now, U.S. Patent...more

USPTO Confirms Different Frameworks for Pre-AIA and Post-AIA Prior-Art Determinations

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 11/20/2023

On November 15, 2023, Director of the United States Patent and Trademark Office (USPTO) Kathi Vidal designated as precedential the Patent Trial and Appeal Board’s (PTAB) final written decision in Penumbra, Inc. v. RapidPulse,...more

2022 Post-Grant Annual Report

Fish & Richardson on 3/2/2023

2022 was a milestone year for the Patent Trial and Appeal Board. In April, Kathi Vidal began her tenure as Director of the United States Patent and Trademark Office with an early focus on promoting increased efficiency at the...more

Review Delayed Is Not Review Denied

McDermott Will & Emery on 2/17/2023

Considering whether the US Patent & Trademark Office (PTO) Director must complete review of the Patent Trial & Appeal Board’s (Board) inter partes review (IPR) decision within the statutory deadline for a final written...more

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/8/2023

As part of the recovery from the global COVID-19 pandemic, the U.S. Court of Appeals for the Federal Circuit took steps to return to normal operations. It began requiring live oral arguments in August 2022 and, by November,...more

2021 PTAB Year in Review: Analysis & Trends: Biologics at the PTAB: Statistics and Insights into Notable Biologics Decisions

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/24/2022

In June 2021, the US Patent and Trademark Office (USPTO) published an update to its study of America Invents Act (AIA) trials involving challenges to Orange Book-listed and biologic patents from September 16, 2012, through...more

2021 PTAB Year in Review: Analysis & Trends: Editors' Introduction

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/8/2022

Love it or hate it, ignore the USPTO Patent Trial and Appeal Board (PTAB) at your peril. The introduction of the PTAB as part of the America Invents Act over ten years ago has forever changed patent litigation. In its first...more

2021 PTAB Year in Review: Analysis & Trends

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/7/2022

[co-author: Jamie Dohopolski] Love it or hate it, ignore the USPTO Patent Trial and Appeal Board (PTAB) at your peril. The introduction of the PTAB as part of the America Invents Act over ten years ago has forever changed...more

2022 IP Outlook Report: The Developments Shaping Patent Law

McDermott Will & Emery on 2/18/2022

KEY TAKEAWAYS AND OUTLOOK FOR 2022 - Tracking with this era’s continuation and uncertainty trends―global supply chain disruption, innovation outpacing legislation, the unstoppable internet of [all the] things (IoT)―2022 is...more

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2021 Decisions

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/9/2022

[co-author: Jamie Dohopolski] Last year, the continued global COVID-19 pandemic forced American courts to largely continue the procedures set in place in 2020. The U.S. Court of Appeals for the Federal Circuit was no...more

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2020 Decisions

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/3/2021

[co-author: Kathleen Wills] Last year, the global COVID-19 pandemic created unprecedented challenges for American courts. By making several changes, however, the U.S. Court of Appeals for the Federal Circuit was able to...more

“Waive” Goodbye to Belated Argument that Administrative Patent Judges’ Appointment is Unconstitutional

McDermott Will & Emery on 5/15/2020

Addressing whether a party can waive a challenge to the constitutionality of Administrative Patent Judges’ (APJs’) appointment, the US Court of Appeals for the Federal Circuit found that the issue is non-jurisdictional and...more

Federal Circuit Averts Huge Disruption to the Patent System by Fashioning a Cure to the Status of Administrative Judges

Sunstein LLP on 5/6/2020

In October 2019, a Federal Circuit panel concluded that the status of Administrative Patent Judges (APJs) on the Patent Trial and Appeal Board (PTAB) at the U.S. Patent and Trademark Office (PTO) violated the Appointments...more

Federal Circuit Denies Rehearing En Banc in Arthrex

McDonnell Boehnen Hulbert & Berghoff LLP on 3/24/2020

Last fall, the Federal Circuit held in Arthrex, Inc. v. Smith & Nephew, Inc. that the way the U.S. Patent and Trademark Office (“USPTO”) had appointed administrative patent judges (“APJs”) to the Patent Trial and Appeal Board...more

2019 PTAB Year in Review

Wilson Sonsini Goodrich & Rosati on 2/10/2020

Wilson Sonsini Goodrich & Rosati is pleased to present our 2019 PTAB Year in Review. We begin the 2019 PTAB Year in Review with a review of 2019 petition filings at the Patent Trial and Appeal Board (PTAB) and then take a...more

PTAB - 2019 Year in Review

Foley & Lardner LLP on 1/23/2020

To wrap up 2019 and usher in 2020 for practitioners who handle Patent Trial and Appeal Board (PTAB) matters, Foley partners Jeanne Gills, Steve Maebius, and George Quillin discussed 2019’s major developments in a webinar on...more

Timeline of Arthrex Developments

Jones Day on 12/17/2019

The Federal Circuit’s decision in Arthrex v. Smith & Nephew excited and disrupted the patent world... Inter partes review (IPR) reshaped patent law and patent litigation this decade after the America Invents Act took effect....more

Principal or Inferior? PTAB APJ Appointment Held Unconstitutional

McDermott Will & Emery on 11/25/2019

In what has quickly turned into a controversial decision, the US Court of Appeals for the Federal Circuit held the appointment of administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB)...more

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