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The Patent Trial and Appeals Board (“PTAB”) recently denied institution of an inter partes review (“IPR”), exercising its discretion under 35 U.S.C. § 314(a)and Apple Inc. v. Fintiv Inc., IPR2020-00019 (PTAB Mar. 20, 2020)...more
The USPTO recently issued new guidance on how the Patent Trial and Appeal Board (PTAB) will apply Apple Inc. v. Fintiv Inc., a 2020 precedential decision which laid out considerations for denying institution of a post-grant...more
The USPTO has issued interim procedures curbing the PTAB’s discretionary denials over post-grant proceedings associated with parallel ITC proceedings or district court litigation. ...more
On June 22, 2022, the U.S. Patent and Trademark Office issued two documents regarding the Patent Trial and Appeals Board's discretionary denials of post-grant challenges based on parallel litigation: a retrospective study of...more
[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
Petitioners and Patent Owners alike have started filing stipulations in district court and at the International Trade Commission to leverage the Fintiv factors in their favor on the issue of discretionary denial at the Patent...more
[co-author: Jay Bober, Summer Associate] The PTAB Strategies and Insights newsletter provides timely updates and insights into how best to handle proceedings at the USPTO. It is designed to increase return on investment for...more
Recently, the USPTO's Patent Trial and Appeal Board ("PTAB") has issued significantly more procedural denials of IPRs, including those based on the NHK Spring and Fintiv decisions. In response, petitioners have tried a...more
In December 2020, the Patent Trial and Appeal Board’s (“PTAB” or “Board”) designated an opinion as precedential (Sotera Wireless, Inc. v. Masimo Corporation), where the Board instituted trial, i.e., did not exercise its...more
Although first briefly mentioned as a possibility in the August 2018 Trial Practice Guide Update (page 10), outside of one instance (Bio-Rad Labs. v. 10X Genomics, IPR2019-00567; -00568, August 8, 2019), PTAB discretionary...more
The Supreme Court has held the PTAB’s “decision to deny a petition is a matter committed to the Patent Office’s discretion,” and that there is “no mandate to institute review.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct....more
By creating the new precedential Fintiv factors, the PTAB provides guidance on what it will consider when deciding whether to deny institution of an IPR petition challenging patent claims that are also being litigated in a...more
In 3Shape A/S v. Align Tech., Inc., IPR2020-00223, Paper 12 (May 26, 2020), the PTAB declined to deny institution of an inter partes review involving a patent challenged in a pending ITC investigation. Despite the advanced...more
The Patent Trial and Appeal Board (PTAB) recently designated an order, Apple Inc. v. Fintiv, Inc., IPR 2020-00019, Paper 11 (Mar. 20, 2020), as precedential. The order outlines six non-dispositive factors the PTAB will...more
In August 2018, the Patent Office foreshadowed that the Board would be expanding the use of its discretion under 35 U.S.C. §§ 314(a)/324(a) and 325(d) to deny petitions. The Office explained that “[t]here may be other reasons...more