PTAB Designates First Precedential AIA Trial Decision ... PTAB Procedural Denials and the Rise of § 314 — Unified ... PTAB Precedential Order Identifies Factors Relevant to Its ... Valve Corp. v. Elecs. Impact of the PTAB's Recent Precedential Decisions. By Nick Bagnolo and Dave Cochran -. The PTAB Designates Three Decisions Related to Discretion ... Reg. PDF USPTO Recent Precedential and Informative Decisions ... 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. An Initial Statistical Analysis of the PTAB's Recent "NHK ... 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. Date of Receipt of Electronic Submissions of Patent Correspondence, 86 Fed. § 315(b)(1) from Click-to-Call. PTAB decision nomination form Anonymously nominate a decision for precedential or informative consideration. USPTO Designates Ex Parte Linden as an Informative § 101 ... The panel will discuss Patent Trial and Appeal Board (PTAB) precedential decisions on discretionary denials and their application in subsequent cases. Garmin Int'l v. PTAB Decisions. 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. The content of this article is intended to provide a general guide to the subject matter. PTAB Designates Two New Precedential Decisions | Brooks ... PDF AIPLA QUARTERLY JOURNAL - Cambridge Technology Law Consider the Board's precedential decision in NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc. 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 . The Fintiv factors, set forth below, guide the Board's . When is the PTAB acting within its authority and for the public interest, and when otherwise? Recently, the Patent Trial and Appeal Board (PTAB) designated one inter partes review decision as precedential and three inter partes review decisions as informative.. These decisions concern PTAB's discretion to deny institution of an IPR under 35 U.S.C. 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 . Search PTAB proceedings and decisions New Precedential PTAB Decisions; There are no new informative PTAB decisions. Three decisions recently designated as precedential by the PTAB provide further guidance on such bars to institution. 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. by Michael Hawkins and Stuart Nelson. 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 . 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).. The Patent Trial and Appeal Board ("PTAB") recently designated two decisions as . The PTAB recently designated two decisions interpreting 35 U.S.C. 9, Sept 22, 2014). 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 . In practice, panels have sometimes converged on a stable framework for at least some instances of exercising discretion. PTAB Designates Two New Precedential Decisions and One Informative Decision Regarding Discretion to Institute Inter Partes Review. "Precedential decisions do not have the force of law and do not provide certainty or predictability. M. Y. EH, P. H.D. Client Alerts. 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. § 317 (b). 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 . Date of Receipt of Electronic Submissions of Patent Correspondence, 86 Fed. of the decision, which . 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. The practice is continuously evolving. § 325(d) and 314(a). It has been accepted . See bottom of the page for alphabetical lists of all precedential and informative decisions. 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. the PTAB and its Standard Operating Procedures (SOP), to set broader parameters for the PTAB's "precedential" and "informative" opinions. 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; * Discovery § 315(b) as precedential. 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. It has now been more than seven months since the PTAB designated Apple Inc. v. Fintiv, Inc., IPR 2020-00019, paper 11 (PTAB Mar. 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. 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. 2 at p. 3 (Rev. 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. Inc., IPR Case Nos. 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. As of May 31, 2019, PTAB has issued 3,442 decisions so far this year. § 315(a)(1) bar in light of the Federal Circuit's interpretation of 35 U.S.C. Serial IPR petitions directed to previously-challenged patents account for many of the petitions filed with the PTAB; however, 35 U.S.C. This CLE course will guide patent counsel on the recent Patent Trial and Appeal Board (PTAB) precedential or informative decisions. The decisions, with the PTAB's description thereof, are listed below. Friday, December 18, 2020. IP Alert: PTAB Designates New Precedential and Informative Decisions on Procedural Issues. IPR2019-00064, -00065, -00085, Paper 10 (PTAB May 1, 2019) (designated: Aug. 2, 2019); Becton, Dickinson & Co. v. B Braun Melsungen AG, Case No. §§ 312(a)(2), 322(a)(2) New Requests for POP Review. This method leaves excessive discretionary decision making up to the administrative patent. This CLE course will guide patent counsel on recent discretionary denial trends. The Federal Circuit had tried to. Reg. Robert M. Yeh PH.D Without Clear Rules, PTAB Practices May Run Afoul of the APA 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. Archived decisions include those not pertinent to or less pertinent to current PTAB practice. PTAB Precedential Decision: Putting the Hammer Down on Filing Serial Petitions? December 18, 2020. In Valve Corp. v. Electronic Scripting Products, Inc., the Board denied institution under 35 U.S.C. 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.. 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 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. Garmin Int'l v. 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%, . 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. Scripts Prods. Recently designated decisions appear in the first panel. 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 . The decision discusses how PTAB decides whether to permit . October 4, 2021. PTAB designates one decision as precedential and four decisions as informative Ex parte Grillo-López, Appeal No. Taken together, these decisions clarify when live testimony may be permitted or required. In May 2019, the PTAB designated precedential two IPR decisions related to its discretion to institute inter partes review. June 15, 2020 by Element IP. The decisions relate to the Board's discretion in instituting trial under 35 U.S.C. Abstract . 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. 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? 2, 2019) (Paper 11) was also designated precedential. There are no new informative PTAB decisions. 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. The Board's stated goal is to "defer to previous [Patent . § 314(a) to deny institution of an inter partes review (IPR) based on parallel proceedings. 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. Reg. 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 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). 20, 2020), as a precedential decision. Team Contact: Sangeeta Shah, Andrew Turner Legal Service: Inter Partes Review, Post-Grant Review. PTAB/USPTO Update - October 2021. 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. 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. 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. 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. § 314 (a). This Article describes the USPTO's practice of designating certain . 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 . 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. The PTAB recently designated a decision interpreting 35 U.S.C. 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). 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. , Case IPR2018-00752 (PTAB Sept. 12, 2018) (Paper No. Discovery The Board recently designated as precedential part of its decision in General Plastic . That number increased dramatically on May 10, 2016, as the PTAB designated five additional, and well-known decisions as precedential. Here's a recap of designations so far: Real parties in interest, 35 U.S.C. The PTAB designated as precedential an order in DTN, LLC v. § 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. Cisco Systems Inc. v. Chrimar Systems, Inc. (IPR2018-01511, Paper No. On May 5, 2020, the Patent Trial and Appeal Board ("PTAB") designated one decision as precedential and removed the precedential designation on another. Indeed, before today, only 3 decisions in the AIA era had been designated as precedential. The Patent Trial and Appeal Board made two more precedential decisions where the Board instituted reviews of patents involved in District Court litigation. § 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 . Date of Receipt of Electronic Submissions of Patent Correspondence, 86 Fed. Under that decision, the agency will deny petitions where there is an impending . 9, Sept 22, 2014). Procedural History - K-40 To date, the Office has designated less than ten decisions as being precedential—an exceedingly tiny fraction of the total decisions. 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 March 18, 2019. It has now been more than seven months since the PTAB designated Apple Inc. v. Fintiv, Inc., IPR 2020-00019, paper 11 (PTAB Mar. 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. § 314 (a), applying the precedential General Plastic factors to deny institution of a follow-on petition. PTAB precedential and informative decisions are organized by subject matter in the accordion below. 11) addresses the 35 U.S.C. Although this is still a tiny fraction of the total decisions, it is a drastic . In recent years, the Patent Trial and Appeal Board has seen a significant uptick in the number of decisions designated precedential or informative. Precedential decisions are binding on PTAB panels. PTAB Precedential and Informative Decisions Michael L. Kiklis mkiklis@bassberry.com 202-827-2985 Matthew D. Zapadka matt.zapadka@bassberry.com 202-827-7974. § 325(d), explaining that the Board uses a two-part framework for exercising discretion under §. Tuesday, August 06, 2019. 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. 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 NHK-Fintiv rule has now been applied by the PTAB in two dozen cases, providing a small but potentially informative statistical sample size. Of those, the PTAB has designated 11 decisions as precedential. Section IV looks at a number of PTAB decisions through those lenses. Yesterday, the Precedential Opinion Panel (POP) designated two PTAB decisions as precedential and one as informative. 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). Annual PTAB Webinar Series: Strategies to Leverage Recent PTAB Precedential Decisions. The Patent Trial and Appeal Board made two more precedential decisions where the Board instituted reviews . 20, 2020), as a precedential decision. 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. An informative decision is not binding authority on Board members, whereas a precedential decision is binding authority. This presentation highlights a number of those key decisions and focuses on tactical considerations to leverage . 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. § 314(a) to deny institution of inter partes review due to parallel district court litigation. and precedential on October 18, 2017. 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. Under this. Each decision applies the Federal Circuit's literalist interpretation of § 315(b) from Click-to-Call . 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