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Recent Blog Posts

  • Constitutional Challenges to PTAB Another Dead End Public vs. Private Rights: Another PTAB Distraction  We all remember the "Great BRI Debate" that was Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2143–44 (2016). PTAB critics argued that the Board's "broadest" claim construction rubric was unfairly stretching claims to embrace prior art — resulting in inevitable invalidity determinations. And that since the PTAB was now in the business of litigation, they must follow litigation claim construction practices deemed more favorable to patent holders (especially since the PTAB amendment... More
  • May/June PTAB CLE PTAB Related CLE   May 10th-11th: American Conference Institute presents its Third Annual Post-Grant PTO Proceedings in New York City (here). This two-day event will cover a variety of AIA Trial Proceeding topics. The second day will include a three-hour workshop entitled Parallel Proceedings: The Good, The Bad, and The Ugly.   May 16, 2017: MIP PTAB Forum 2017 will be held in New York City. (here)  This is a full-day forum on PTAB trial practices.  May 25, 2017: Strafford Legal presents: Evolving PTAB Trial Practice:... More
  • WiFi One Argued at Federal Circuit "Under This Section" a Limitation on the Scope of 314(d) Appeal Bar?  In today's en banc argument (audio here) the Federal Circuit considered the whether it should overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. § 315(b) governing the filing of petitions for inter partes review.   As expected much of the... More
  • Ethical Guidelines for PTAB Judges PTAB Ethics Accusations Are Misguided  Critics of the Patent Trial & Appeal Board (PTAB) are not hard to find — attorneys especially hate change.  Since the start of AIA trial proceedings in 2012, we have seen a never ending stream of challenges to these proceedings as "unfair," "unconstitutional," "violating due process," and employing the "wrong litigation standards." All of these challenges failed at either the Federal Circuit, Supreme Court, or both. (not at all surprisingly, given similar challenges to the patent... More
  • Post-Grant Buzz Spring 2017 Upcoming CLE, Director Change & New Rules  The chatter around the USPTO's Alexandria campus is the ongoing efforts of the Secretary of Commerce, Wilbur Ross, to select a new USPTO Director. With interviews progressing, some of the bigger names have seemingly fallen out of the picture.  The focus appears to have shifted to attorneys in private practice. Current favorites include a patent litigation partner in DC, the other a patent prosecution focused partner from the West Coast.  Stay tuned.  As noted previously,... More