New Director’s Interest in Predictability To Drive PTAB Change
As pointed out yesterday over at IPWatchdog, the USPTO Solicitor has withdrawn as Intervenor in the Federal Circuit appeal between Telebrands Corporation and Tinnus Enterprises (stemming from PGR2015-00018, challenging a patent pertaining to the well-known Bunch-o-Balloons® product on indefiniteness grounds). The USPTO intervened in the earlier appeal to defend the indefiniteness standard applied in the PGR. This is because the applied standard was stricter than that enunciated in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014). The application of a different, stricter standard caught some by surprise that had not realized that the Federal Circuit endorsed that very standard for agency proceedings in In re Packard, 751 F.3d 1307, 1310 (Fed. Cir. 2014).
I pointed out at the time of this appeal that the Packard indefiniteness standard is grounded in ex parte examination policies and practices. As such, it was unclear whether the Court’s holding in Packard could be properly extended to AIA trial proceedings. Yet, the Solicitor’s decision to withdraw as Intervenor in the Tinnus dispute is not a sign that the agency lacks faith in its brief. Rather, the change is indicative of a new direction for PTAB trial proceedings. Continue Reading PTAB Likely to Adopt a Philips Construction for AIA Trials in 2018