Recently, the Patent Trial and Appeal Board (PTAB) designated one inter partes review decision as precedential and three inter partes review decisions as informative.. In Valve Corp. v. Electronic Scripting Products, Inc., the Board denied institution under 35 U.S.C. St. Louis patent litigator Doug Robinson spoke to Law360 about the high number of decisions the Patent Trial and Appeal Board (PTAB) has deemed precedential since early March. The Patent Trial and Appeal Board's (PTAB) inter partes review institution rate has dropped every year since the launch of IPRs, and so far in 2019, is at 54%, . The Federal Circuit had tried to. On Thursday, December 17, 2020, the Board designated portions of two decisions applying the Fintiv factors as precedential: Sotera Wireless, Inc. v. Masimo Corp., IPR2020-01019, Paper 12 (Dec. 1, 2020) (precedential as to § II.A) and Snap, Inc. v. SRK Technology LLC, IPR2020-00820, Paper 15 (Oct. 21, 2020) (precedential as to § II.A).. § 315(b)(1) from Click-to-Call. To nominate a decision to be designated precedential or informative, or suggest a decision be de-designated please include the following information: (i) an identification of the PTAB decision by case name, trial number, paper number, and date of the PTAB decision; * Search PTAB proceedings and decisions Garmin Int'l v. The Patent Trial and Appeal Board made two more precedential decisions where the Board instituted reviews of patents involved in District Court litigation. PTAB Designates Two Decisions as Precedential Written August 6, 2019 The US Patent and Trademark Office on August 2, 2019, designated two Patent Trial and Appeal Board (PTAB) decisions as precedential and another as informative. June 15, 2020 by Element IP. 2, 2019) (Paper 11) was also designated precedential. PTAB Designates Five Precedential Decisions By Scott McKeown on May 11, 2016 PTAB Moves to Establish More Precedential Decisions Yesterday, the Patent Trial & Appeal Board (PTAB) announced the designation of five, additional precedential decisions. 11) addresses the 35 U.S.C. The panel will discuss what they mean for the introduction of new evidence at rehearing, issue joinder, live testimony at oral hearings, and the PTAB's discretion to deny institution under 35 U.S.C. § 314(a) to deny institution of an inter partes review (IPR) based on parallel proceedings. The Board concluded that because Cisco filed a civil action against Chrimar challenging the . Discovery The decision held that the way PTAB judges were appointed was unconstitutional, agreeing with the Federal Circuit's explosive October 2019 decision on that point. Top 5 PTAB Decisions of 2019 for PTAB Practitioners ... The PTAB's Precedential Opinion Panel granted rehearing and POP review, and reversed the Board's decision. The U.S. Patent and Trademark Office (USPTO), on occasion, publishes certain Patent Trial and Appeal Board (PTAB) decisions as precedential or informative. Robert M. Yeh PH.D Without Clear Rules, PTAB Practices May Run Afoul of the APA PTAB Precedential and Informative Decisions Michael L. Kiklis mkiklis@bassberry.com 202-827-2985 Matthew D. Zapadka matt.zapadka@bassberry.com 202-827-7974. On May 5, 2020, the Patent Trial and Appeal Board ("PTAB") designated one decision as precedential and removed the precedential designation on another. Cisco Systems Inc. v. Chrimar Systems, Inc. (IPR2018-01511, Paper No. 4 Big Issues That Shaped The PTAB In 2021 - Law360 "Precedential decisions do not have the force of law and do not provide certainty or predictability. These decisions concern PTAB's discretion to deny institution of an IPR under 35 U.S.C. The Designation of a Decision as Precedential As part of its revised standard operating procedures (SOP2), the PTAB may designate an otherwise routine decision as precedential—a binding authority. IPR2019-00064, -00065, -00085, Paper 10 (PTAB May 1, 2019) (designated: Aug. 2, 2019); Becton, Dickinson & Co. v. B Braun Melsungen AG, Case No. When is the PTAB acting within its authority and for the public interest, and when otherwise? The panel will offer suggestions for petitioners and patent owners in light of the PTAB's increased use of discretionary denials. 2018-006082 (Jan. 31, 2020) (precedential) This decision to deny a request for rehearing explains that the burden for establishing that a reference is a printed publication is different in examination than in an inter partes review proceeding. The Board Provides a Framework: The Advanced Bionics and Oticon Medical decisions provide a framework for practitioners and the Board to employ when analyzing the Board's discretion to reject a petition under Section 325(d). PTAB Provides Guidance on Secondary Considerations of ... § 325(d) provides the Board with discretion to reject petitions where the same, or substantially the same, prior art or arguments have already been presented to the USPTO. 69195 (Dec. 7, 2021) [Written comments period closes February 7, 2022] (proposing to amend the patent rules of practice to provide that the receipt date of correspondence submitted via EFS is the date in U.S. Eastern Time when the USPTO received the correspondence). § 317 (b). PTAB Reveals Route To IPR Institution Denial In Parallel ... PTAB Designates General Plastic Decision Governing Follow ... PTAB/USPTO Update - January 2022 | WilmerHale Date of Receipt of Electronic Submissions of Patent Correspondence, 86 Fed. PTAB Precedential Decision Nomination Form Could Lead to ... Sharkninja Operating LLC v. iRobot Corp., Case IPR2020-00734, Paper 11 (PTAB October 6, 2020) (precedential) This case involved an institution decision where the patent owner had argued that the PTAB should deny institution because the petitioner failed to name all RPIs, namely, the petitioner's corporate parent. A more recent decision in Valve Corp. v. Elec. 9, Sept 22, 2014). Garmin Int'l v. § 314 (a), applying the precedential General Plastic factors to deny institution of a follow-on petition. The decision discusses how PTAB decides whether to permit . On Tuesday, March 24, 2020, the Patent Trial and Appeal Board ("PTAB") designated two inter partes review ("IPR") decisions as precedential and one as informative. Precedential decisions are binding on PTAB panels. Date of Receipt of Electronic Submissions of Patent Correspondence, 86 Fed. § 315(c) does not provide per se prohibitions against same-party joinder and joinder of new issues, but instead "provides discretion to allow a petitioner to be joined to a proceeding in . USPTO News. Discovery June 15, 2020. To date, the Office has designated less than ten decisions as being precedential—an exceedingly tiny fraction of the total decisions. Annual PTAB Webinar Series: Strategies to Leverage Recent PTAB Precedential Decisions. The PTAB has been very active in designating decisions precedential and informative in 2019. In practice, panels have sometimes converged on a stable framework for at least some instances of exercising discretion. 69195 (Dec. 7, 2021) [Written comments period closes February 7, 2022] (proposing to amend the patent rules of practice to provide that the receipt date of correspondence submitted via EFS is the date in U.S. Eastern Time when the USPTO received the correspondence). § 314 (a). Under this. It has now been more than seven months since the PTAB designated Apple Inc. v. Fintiv, Inc., IPR 2020-00019, paper 11 (PTAB Mar. Section IV looks at a number of PTAB decisions through those lenses. Reg. Scripting Prods., Inc., IPR2019-00062, -00063, -00084 (PTAB Apr. Ashley N. Klein Warren J. Thomas Follow this and additional works at:https://scholarship.kentlaw.iit.edu/ckjip Part of theLaw Commons This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. opinions as precedential, informative, or representative and compares it to the practice of issuing precedential opinions at other agencies that conduct quasi-judicial proceedings. The Patent Trial and Appeal Board (PTAB or "Board") is an administrative body of the United States Patent and Trademark Office (USPTO) that rules on issues of patentability. This method leaves excessive discretionary decision making up to the administrative patent. PTAB Designates Four Decisions Precedential or Informative On June 11, 2020, the Patent Trial and Appeal Board designated as precedential a decision regarding when agreements collateral to settlement must be disclosed under 35 U.S.C. Under this precedent, the PTAB applies a six factor, "holistic" test to determine whether, in the panel's discretion, institution should be denied due to the advanced state of a . On October 18, 2017, the PTAB designated as "precedential" a major portion of its prior decision in General Plastic Industrial Co., Ltd. v. Canon Kabushki Kaisha.The decision was previously designated "informative," but now, as a "precedential" decision, binds all members of the Board.. Tuesday, August 06, 2019. This CLE course will guide patent counsel on recent discretionary denial trends. Although this is still a tiny fraction of the total decisions, it is a drastic . § 325(d) and 314(a). Sections 314 and 316, among other things, in PTAB practice. PTAB precedential and informative decisions are organized by subject matter in the accordion below. Recently designated decisions appear in the first panel. PTAB Designates Two New Precedential Decisions and One Informative Decision Regarding Discretion to Institute Inter Partes Review. § 315(a)(1) bar in light of the Federal Circuit's interpretation of 35 U.S.C. According to the PTAB's Standard Operating Procedure ("SOP"), " [a] precedential opinion is binding authority in subsequent matters involving similar facts or issues…unless overcome by subsequent binding authority." SOP No. It has now been more than seven months since the PTAB designated Apple Inc. v. Fintiv, Inc., IPR 2020-00019, paper 11 (PTAB Mar. IP Alert: PTAB Designates New Precedential and Informative Decisions on Procedural Issues. Serial IPR petitions directed to previously-challenged patents account for many of the petitions filed with the PTAB; however, 35 U.S.C. The Fintiv factors, set forth below, guide the Board's . The decisions, with the PTAB's description thereof, are listed below. PTAB Precedential Decision: Putting the Hammer Down on Filing Serial Petitions? Ex parte Grillo-Lopez, is indicated by the PTAB to be precedential as to "[i]ssues specific to ex parte appeals… printed publication." According to the PTAB's Standard Operating Procedure, "[a] precedential decision is binding Board . 8) (precedential) In NHK Spring , the PTAB exercised its discretion to deny institution under both §§ 314(a) and 325(d). See bottom of the page for alphabetical lists of all precedential and informative decisions. A brief description of the PTAB's precedential decisions is provided below. The Patent Trial and Appeal Board made two more precedential decisions where the Board instituted reviews . The content of this article is intended to provide a general guide to the subject matter. The PTAB recently designated two decisions interpreting 35 U.S.C. of the decision, which . The Patent Trial and Appeal Board (PTAB) recently designated as precedential, three decisions addressing the rule that patent challengers must identify all interested parties in a post-grant proceeding. PTAB decision nomination form Anonymously nominate a decision for precedential or informative consideration. Scripts Prods. According to the PTAB's Standard Operating Procedure ("SOP"), " [a] precedential opinion is binding authority in subsequent matters involving similar facts or issues…unless overcome by subsequent binding authority." SOP No. The Patent Trial and Appeal Board (PTAB) recently designated an order, Apple Inc. v. Fintiv, Inc., IPR 2020-00019, Paper 11 (Mar. October 4, 2021. by Michael Hawkins and Stuart Nelson. All other decisions are not. PTAB Designates One Decision as Precedential and Three Decisions as Informative. 20, 2020), as a precedential decision. § 314 or § 325(d) where the petitioner raises prior art or arguments that are the same or substantially the same as those previously considered by the examiner during prosecution. Of those, the PTAB has designated 11 decisions as precedential. , Case IPR2018-00752 (PTAB Sept. 12, 2018) (Paper No. On August 2, 2019, the Patent Trial and Appeal Board ("PTAB") of the United States Patent and Trademark Office designated as precedential two Decisions on Institution. Date of Receipt of Electronic Submissions of Patent Correspondence, 86 Fed. The Board recently designated as precedential part of its decision in General Plastic . 20, 2020), as precedential.The order outlines six non-dispositive factors the PTAB will consider when determining whether to exercise its discretion under 35 U.S.C. The Office's recent decision to create a form that can be used for anonymously nominating PTAB decisions to be ruled precedential seems to be a continuation of the Director's and the Office's efforts to receive input from its stakeholders as the institution of the PTAB continues to evolve." Please click the link below to read the full article. In recent years, the Patent Trial and Appeal Board has seen a significant uptick in the number of decisions designated precedential or informative. In view of the impact that this now precedential rule has had on PTAB . Consider the Board's precedential decision in NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc. On September 9, 2021, Senators Patrick Leahy and Thom Tillis wrote a letter to Acting Director Andrew Hirshfeld requesting that the USPTO "take steps to reduce patent applicants' making inappropriate conflicting statements in submissions to the PTO and other . Law360 has published the article "What You Missed At PTAB: Contours Of IPR Institution Denial," written by Akin Gump intellectual property partner Andrew Holtman and senior counsel Melissa Gibson.The article looks at recent precedential decisions by the Patent Trial and Appeal Board (PTAB), in which it denied institution of a petition when related to a copending district court proceeding. Team Contact: Sangeeta Shah, Andrew Turner Legal Service: Inter Partes Review, Post-Grant Review. A brief description of the PTAB's precedential decisions is provided below. New Requests for POP Review. The PTAB elevated two decisions on March 18 to precedential status, K-40 Electronics, LLC v. Escort, Inc. and DePuy Synthes Products, Inc. v. Medidea, LLC. This presentation highlights a number of those key decisions and focuses on tactical considerations to leverage . Archived decisions include those not pertinent to or less pertinent to current PTAB practice. Follow-on IPR petitions by the same entity challenging the same claims have been at issue in multiple cases before the Patent Trial and Appeal Board. and precedential on October 18, 2017. . This Article describes the USPTO's practice of designating certain . § 325(d) and 314(a). PTAB/USPTO Update - October 2021. Stay tuned to the At the PTAB Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice. Valve Corp. v. Elecs. The PTAB recently designated a decision interpreting 35 U.S.C. Indeed, before today, only 3 decisions in the AIA era had been designated as precedential. Under that decision, the agency will deny petitions where there is an impending . § 325(d), explaining that the Board uses a two-part framework for exercising discretion under §. In May 2019, the PTAB designated precedential two IPR decisions related to its discretion to institute inter partes review. On December 4, the USPTO's Patent Trial and Appeal Board (PTAB) designated three decisions precedential, with two addressing real party in interest (RPI) and one addressing follow-on petitions under 35 U.S.C. The Precedential Opinion Panel's decision relies principally on the Federal Circuit's Click-to-Call decision for the proposition that the statutory language is not ambiguous and that there are no exceptions to its plain and . Reg. The PTAB denied institution per § 325(d) because the petitioner relied on "the same or substantially the same prior art or arguments previously [ ] presented to the . Topics That number increased dramatically on May 10, 2016, as the PTAB designated five additional, and well-known decisions as precedential. the PTAB and its Standard Operating Procedures (SOP), to set broader parameters for the PTAB's "precedential" and "informative" opinions. An informative decision provides PTAB norms on recurring issues, guidance on PTAB rules and practices, and guidance on issues that may develop through the analysis of recurring issues. The ratio of Rule 36 affirmances to issued decisions has trended slightly downward over time. With over 12,000 cases filed and nearly ten years of practice, AIA proceedings are here to stay. Sotera Wireless, Inc. v. Masimo Corporation, IPR2020-01019, Paper 12 (PTAB December 1, 2020) (precedential, designated December 17, 2020); and Snap, Inc. v. SRK Technology . The Patent Trial and Appeal Board (the "Board") designated one decision as precedential and two as informative, all involving cases in which the board found that objective evidence of secondary considerations such as successful commercial product and industry praise overcame a prima facie case of obviousness. March 18, 2019. M. Y. EH, P. H.D. Client Alerts. The PTAB designated as precedential an order in DTN, LLC v. Procedural History - K-40 New Precedential PTAB Decisions; There are no new informative PTAB decisions. Here's a recap of designations so far: Real parties in interest, 35 U.S.C. Impact of the PTAB's Recent Precedential Decisions. This decision denies institution after applying the General Plastic factors, explaining that the Board's application of the General Plastic factors is not limited to instances . In Cisco Systems, Inc. v. Chrimar Systems, Inc. , IPR2018-01511, Paper 11 (PTAB Jan. 31, 2019), the Petitioner had filed a civil action challenging the validity of a claim of the challenged patent before the date on which the . This CLE course will guide patent counsel on the recent Patent Trial and Appeal Board (PTAB) precedential or informative decisions. PTAB Provides Precedential Decisions Weighing Fintiv Factors. The Patent Trial and Appeal Board ("PTAB") recently designated two decisions as . The panel will discuss Patent Trial and Appeal Board (PTAB) precedential decisions on discretionary denials and their application in subsequent cases. On March 13, 2019, the Patent Trial and Appeal Board issued a precedential decision in Proppant Express Investments LLC v.Oren Technologies LLC, holding that 35 U.S.C. The "NHK-Fintiv rule" originates from two precedential PTAB decisions, in which the PTAB applied the rule and then exercised its discretion to deny institution of the IPR trials. In Apple Inc. v. Fintiv, Inc., the Patent Trial and Appeal Board (PTAB), in a precedential order, outlined the factors it considers when determining whether to exercise its discretion under 35 U.S.C. Each decision applies the Federal Circuit's literalist interpretation of § 315(b) from Click-to-Call . Inc., IPR Case Nos. § 314(a) to deny institution of inter partes review due to parallel district court litigation. December 18, 2020. Abstract . These decisions concern PTAB's discretion to deny institution of an IPR under 35 U.S.C. As of May 31, 2019, PTAB has issued 3,442 decisions so far this year. The practice is continuously evolving. Precedential Opinion Panel (POP) Browse the decisions and papers for each proceeding in which a POP review has been granted. On July 31, 2014, the Patent Trial and Appeal Board (PTAB) designated a decision in a Covered Business Method (CBM) Review, SecureBuy LLC v.CardinalCommerce Corporation, CBM 2014-00035, Paper 12 (April 25, 2014) as "precedential" under Standard Operating Procedure 2 (SOP 2).This marks the first time that the PTAB has designated a decision in an AIA trial to be binding precedent. It has been accepted . Yesterday, the Precedential Opinion Panel (POP) designated two PTAB decisions as precedential and one as informative. The Board's stated goal is to "defer to previous [Patent . On June 11, the Patent Trial and Appeal Board (PTAB) designated one new precedential opinion and three informative decisions relating to a variety of procedural issues. The decisions relate to the Board's discretion in instituting trial under 35 U.S.C. Posted in PTAB Decisions On April 16, 2019, the Patent Trial and Appeal Board ("the PTAB" or "the Board") designated three orders as precedential related to the issue of the incomplete disclosure of "real parties-in-interest" ("RPIs") at the time of the filing of petitions for post-grant proceedings. 2 at p. 3 (Rev. Friday, December 18, 2020. Home » PTAB Precedential Decision Offers Guidance on Discretionary Denials of Institution in Light of Co-Pending Litigations PTAB Precedential Decision Offers Guidance on Discretionary Denials of Institution in Light of Co-Pending Litigations By Emily J. Greb on May 26, 2020 Posted in Institution Decisions, IPR, Precedential, PTAB Procedures, USPTO The NHK-Fintiv rule has now been applied by the PTAB in two dozen cases, providing a small but potentially informative statistical sample size. 69195 (Dec. 7, 2021) [Written comments period closes February 7, 2022] (proposing to amend the patent rules of practice to provide that the receipt date of correspondence submitted via EFS is the date in U.S. Eastern Time when the USPTO received the correspondence). The Patent Trial and Appeal Board ("PTAB") recently designated two decisions as precedential, and one as informative, that concern its discretion to institute inter partes review. PRECEDENTIAL DECISIONS AT THE PTAB: AN ENDANGERED SPECIES? PTAB designates two decisions as precedential and one decision as informative Advanced Bionics, LLC v. MED-EL Elektromedizinische Geräte GmbH, IPR2019-01469 (PTAB Feb. 13, 2020) (Paper 6) (precedential) This decision denies institution of an inter partes review based on 35 U.S.C. On Tuesday, March 24, 2020, the Patent Trial and Appeal Board ("PTAB") designated two inter partes review ("IPR") decisions as precedential and one as informative. 20, 2020), as a precedential decision. IPR2017-01586, Paper 8 . PTAB designates one decision as precedential and four decisions as informative Ex parte Grillo-López, Appeal No. The newly-designated precedential opinion lays out factors that the PTAB considers when asked to exercise its discretion to deny institution in light of an imminent trial. This precedential decision instructs attorneys to be careful when drafting settlement agreements to PTAB proceedings, especially when the patent (s) at issue have been or are being litigated, and/or were the subject of other agreements unrelated to the PTAB proceeding. § 315(b) as precedential. Ex parte Grillo-Lopez, is a 2020 decision of the Patent Trial and Appeal Board (PTAB) that is listed among the Board's precedential decisions. 2 at p. 3 (Rev. Recent precedential Patent Trial and Appeal Board decisions clarify when requests to deny institution of inter partes review in favor of parallel district court cases may succeed or fail and how . These decisions provide clarification to help petitioners avoid dismissal for failing to comply with the requirement. Taken together, these decisions clarify when live testimony may be permitted or required. New Informative PTAB Decisions. There are no new informative PTAB decisions. §§ 312(a)(2), 322(a)(2) On Thursday, June 11, 2020, the PTAB designated one decision as precedential and three decisions as informative, on issues including: 1) the statutory scope of confidential settlement agreements, 2) design patent ornamentality, 3) terminating a proceeding having a pending motion to amend, and 4) use of confidential information at a hearing. § 315(a)(1) as precedential. The PTAB "precedential" designation was limited to Section II.B.4.i. R. OBERT . By Nick Bagnolo and Dave Cochran -. On March 12, in Proppant Express Investments, LLC v.Oren Technologies, LLC, the Patent Trial and Appeal Board (PTAB) Precedential Opinion Panel (POP) decided that the PTAB has discretion to allow same-party joinder of new issues into an existing proceeding.Notably, this is the first precedential decision the POP has issued since its inception. Practitioners must consider revisions to the Practice Guide, guidance issued from the PTAB, rule changes, precedential decisions issued by the PTAB, Federal Circuit decisions, and Supreme Court decisions. The precedential decision is General Plastic Industrial Co., Ltd. v. Canon Kabushiki Kaisha, Case IPR2016-01357 (PTAB Sept. 6, 2017) (Paper 19), Section II.B.4.i. PTAB's Designation for . Three decisions recently designated as precedential by the PTAB provide further guidance on such bars to institution. An informative decision is not binding authority on Board members, whereas a precedential decision is binding authority. With a number of changes, a new USPTO guidance, and even a new Precedential Opinion Panel affecting the PTAB in recent months, the five cases it deemed precedential will serve as a pathway for petitioners and patent . 9, Sept 22, 2014). PTAB Decisions. DTN, LLC v. Farms Technology, LLC, IPR2018-01412, Paper 21 (June 14, 2019) (precedential) This decision terminates the proceeding due to settlement and denies a joint request to expunge collateral agreements referenced in the settlement . Volume 17, Issue 3 (2018) PTAB Bar Association View/ Download Articles: Uncertainty About Real Parties in Interest and Privity in AIA Trials Evan Day, Kevin Patariu, and Bing Ai Precedential Decisions at the PTAB: An Endangered Species? Reg. Number increased dramatically on May 10, 2016, as the PTAB & quot ; defer to [! Of § 315 ( b ) ( 1 ) from Click-to-Call subsequent cases public interest, and well-known decisions precedential! There are no new informative PTAB decisions ; There are no new informative decisions... For at least some instances of exercising discretion under § public interest, U.S.C. Follow-On petition ) ( 1 ) as precedential part of its decision in General Plastic factors to institution. 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