Abusive Reexam Relief
Late last month, in In re Vivint, Inc., the Federal Circuit tackled the question of whether a post-issuance review proceeding (in this case, ex parte reexamination (“EPR”)) was available to a challenger that repeatedly filed another post-issuance review proceeding (in this case, inter partes review (“IPR”)) to forward the very same argument. The court held that, while the EPR request had shown substantial new questions of patentability, “the Patent Office abused its discretion and acted arbitrarily and capriciously under § 325(d).” As such the court vacated the decision and remanded to the Patent Office (“PTO”) with instructions to dismiss.
But, don’t expect this decision to be much more than a corner case.
Continue Reading Reexam After Failed IPR?