This week marks the first annual Patent Quality Week. Low quality patents can have huge negative impacts on business sectors from Main Street retailers to Silicon Valley startups, and everywhere in between. Coordinated by Engine, a policy advocate for startups, Patent Quality Week includes a number of events focused on patent quality and how it…
Tag Archive for inter partes review
Arthrex Is Here—What Will It Mean?
by Josh Landau •
Yesterday, the Supreme Court handed down its much-awaited decision—at least, much-awaited by people who care about patents and the Patent Trial and Appeal Board (PTAB)—in the consolidated U.S. v Arthrex, Arthrex v. Smith & Nephew, and Smith & Nephew v. Arthrex cases. And while the multiple parties and multiple opinions might look complicated, it’s actually…
One Case, All The Problems: VLSI v. Intel Exemplifies Current Issues In Patent Litigation
by Josh Landau •
Patent litigation suffers from a number of issues at present. Hedge funds backing non-practicing entities (NPEs) in order to chase a share of billion-dollar judgments. Plaintiffs using damages methodologies that have little to no relation to the reality of the patent system in order to obtain those billion dollar judgments. NPEs asserting patents that they…
New Study Shows That IPR Delivers An Economic Benefit, Even If The District Court Doesn’t Stay Litigation
by Josh Landau •
New research from the Perryman Group shows that inter partes review (IPR) is economically beneficial, even if co-pending district court litigation isn’t stayed. The Perryman study, commissioned by Unified Patents, examines IPR’s economic impact, including the difference between staying or continuing on with a co-pending district court case. There are two important findings in this…
Comments on USPTO’s Newest Regulation Overall Oppose Discretionary Denial Rules
by Josh Landau •
The USPTO is considering whether to enshrine discretionary denial of inter partes review cases into regulation. Last week, comments were due on the most recent portion of this process. (CCIA’s comments criticizing the current General Plastic, Valve, NHK Spring, and Fintiv precedential opinions, and explaining why they should not be converted into rules, can be…
Changes Reducing IPR Institution Rate Have Increased Litigation Frequency and Cost
by Josh Landau •
The U.S. Patent and Trademark Office’s precedential opinions on discretionary denial are the subject of significant attention—a withdrawn attempt by the Trump Administration to codify discretionary denial as a rule, a request for comments on rulemaking by the Office, and a challenge to the practice of discretionary denial as illegal under the Administrative Procedure Act.…
PTAB Denies IPR Petitions Filed Less Than One Month After Lawsuit
by Josh Landau •
On Monday, the PTAB made clear that the ultimate outcome of the Fintiv rule championed by Director Iancu is the elimination of inter partes review (IPR) as a viable alternative to challenging patents in litigation. RAI sued Philip Morris on April 9th, 2020. Less than a month later, on May 8th, 2020, Philip Morris filed…
Cert Granted in Arthrex Case On PTAB Appointments
by Josh Landau •
This week, the Supreme Court granted certiorari in a set of related cases between Arthrex and Smith & Nephew, as well as the federal government. The cases revolve around one fundamental question: are judges of the Patent Trial and Appeal Board (PTAB) principal officers of the United States? That question controls the constitutionality of their…
Comments Emphasize Flaws In PTO Proposal To Remove Pre-Institution Presumption
by Josh Landau •
Recently, the Patent and Trademark Office (PTO) proposed a concerning new rule. It would create serious due process problems, violate the Administrative Procedure Act (APA) by changing an agency position without justification, increase the cost of inter partes review (IPR), and make it harder to invalidate bad patents in IPR. Given all these problems, it…
Federal Circuit Holds That PTAB Should Consider § 101 When Reviewing Proposed Amended Claims
by Josh Landau •
In today’s Uniloc v. Hulu decision, the Federal Circuit held that the PTAB is permitted to consider all issues of patentability, including § 101 (and presumably including § 112), when a patent owner proposes new claims in an inter partes review (IPR). While a petitioner can only file an IPR petition based on § 102…