Trial Dates & Backward Looking Stats Unreliable?

This past November, Senator Tillis has cautioned the agency that “it is difficult to imagine any plausible justification for the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division.” Fintiv practices have remained unchanged since that time.

More recently, the WDTX had occasion to consider the competing schedule of another forum. Finding that the WDTX was faster, it looked to the realities of the other forum’s scheduling.

Continue Reading WDTX Looks at Average Time to Trial, Why Doesn’t the PTAB?

New Confirmation to Drive New Policy?

At long last, the Senate has finally confirmed Kathy Vidal as the new PTO Director….just in time to tender her resignation before the next administration!  Ok, maybe not quite that late.  But considering it can take close to two years for any Notice and Comment Rulemaking to get through the system, these appointment delays can seriously hamstring a Director’s ability to drive any significant policy change.

So, the new Director needs to hit the ground running.  And, as usual, the PTAB offers some early hurdles.
Continue Reading Finally, a New PTO Director. Now What?

Virtual CLE Program January 24 – 27th

IPWatchdog’s PTAB Masters 2022 (PTAB-palooza if you prefer), is coming next week!

The free, 4-day CLE program is virtual, and will focus on the PTAB from the viewpoint of both the patent owner and petitioners challenging patents.  Topics will explore political and legislative developments impacting the agency in

Stark and Vidal Nominations Head to Finish Line

Tomorrow morning, the Senate Judiciary will pass the nominations of Leonard P. Stark to be United States Circuit Judge for the Federal Circuit, and Katherine Vidal to be Under Secretary of Commerce for Intellectual Property & Director of the United States Patent and Trademark Office, to the

Appeal Bar Deemed to Bar APA Suit

Back in September of 2020, a number of large tech companies sued the USPTO for violating the APA by denying IPR petitions on the basis of a competing trial date. More specifically, the suit argued that the so-called NHK-Fintiv practice — implemented without notice and comment rulemaking — was in violation of established APA practices.  Since filing, the Court seemed quite interested in that argument at an earlier oral hearing on summary judgment.  Oddly, the case was dismissed yesterday based upon the 314(d) appeal bar.

Continue Reading NHK-Fintiv APA Suit Ends Abruptly

Senator Tillis Warns Agency, Requests Report on Fintiv Practices

As I pointed out in my previous post, the Senate Judiciary Committee has targeted WDTX venue practice as unseemly and inappropriate.  In a two-pronged attack on the WDTX, Senator Tillis is now warning the PTAB to stop relying on unrealistic WDTX trial dates in its Fintiv analyses.  This separate letter to Acting USPTO Director Hirshfeld is signed only by Senator Tillis as he supports Fintiv practices (Leahy does not).

In the letter, Senator Tillis points out that a far more predictable indicator of the ultimate trial date is average time to trial, not the “aggressive trial dates” set by judge Albright.
Continue Reading PTAB Warned to Disregard Unrealistic WDTX Trial Schedules

October Webinar to Debrief on Leahy Bill

Senator Patrick Leahy (D) VT and Senator John Cornyn (R) TX have jointly drafted a new bill entitled the “Restoring the America Invents Act.” The Bill proposes to roll-back recent directives and policies of former USPTO Director Iancu, most notably discretionary denials of AIA trial proceedings in view

Bill Released – Iancu Era Rebuked

Well, the wait was not that long after all.  Senator Leahy -VT (D) (with co-sponsor Senator Cornyn – Tx (R)) has today released the draft bill entitled “Restoring the America Invents Act.”  The bill includes most of what I expected, with a handful of additional tweaks.

Below is a brief overview of all of the proposed changes.
Continue Reading Restoring the America Invents Act – What You Need to Know

AIPLA Webinar Next Tuesday

For those seeking some PTAB-related CLE, consider next Tuesday’s AIPLA webinar @12:30 (EST) entitled:  Discretionary Denials Revisited: The New Politics of FintivRegister (here)

The program will explore the increasing politicization of the USPTO Director position, and what may be on the horizon relative to the uncodified discretionary