Patent Litigation

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Federal Circuit Reverses Newest Member

The concept of excluding the PTAB via a forum selection clause is not a new idea.  Back in 2019 I highlighted this option as the #1 development in PTAB practice for district court litigators.  Since that time, there have been a handful of cases that sought to leverage this mechanism. Earlier this week, the Federal Circuit was given another opportunity to explore this topic, and the potential policy consequences of such private agreements.
Continue Reading Shutting Out the PTAB Via Private Agreement

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…

Director Vidal 2022

The Senate Judiciary vetted USPTO Director Nominee Kathy Vidal earlier this month.  Not surprisingly, the hearing was fairly uneventful (even for uber-geeks, like myself).  With a confirmation vote looming, some final written materials have been submitted by Ms. Vidal that are similarly generic in espousing any particular viewpoint that could be labeled as “pro-patent” or “anti-patent.”  That said, reading the tea-leaves, there are some PTAB developments that seem inevitable for 2022 given the current landscape.
Continue Reading Expect Slight PTAB Adjustments From the New Director in 2022

CAFC & USPTO Director Nomination Hearings

At 10AM today, the Senate Judiciary Committee will hold nomination hearings for 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.  It appears…

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

Draft Bill Dead on Arrival

Last week, the “Restoring America’s Leadership in Innovation Act” was again floated by Republican Congressman Thomas Massie (KY).  The same draft Bill was previously released in 2018 and 2020.  Backed only by a handful of relatively powerless House Republicans, the Bill proposes a number of highly controversial measures.  But, if you are going to dream, dream big!
Continue Reading Make Patent Trolls Great Again!

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