Post grant patent proceedings at the USPTO are often initiated in parallel with an infringement action in the district court. Prior to September 16, 2012, when the speedier and more robust post grant options of the America Invents Act (AIA) first became available, patent challengers relied solely on patent reexamination. As patent reexamination proceedings were notoriously slow, many courts would proceed in parallel despite the conflicting actions of the USPTO that often times would tend to demonstrate the unpatentability of the disputed patent claims.
Recognizing the long pendencies of patent litigation and patent reexamination proceedings, patent challengers may file a patent reexamination as an “insurance policy” to effectively undo the effect of an interim court judgment. Over the past few years, many of these reexaminations have been making their way to the Court of Appeals of the Federal Circuit (CAFC). Back in 2012 the Court considered this practice in both In re Construction Equipment and In re Baxter. Yesterday, the Baxter dispute was again at issue, and again, Judge Newman decried the potential undermining of previously settled court rulings via USPTO decision. Read the rest of this entry »