325(d)

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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.
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Additional Informative Decisions 325(d)

Today the Patent Trial & Appeal Board (PTAB) added to its growing stockpile of cases that address the meaning of “same or substantially the same prior art or arguments” under 35 U.S.C. § 325(d). This growing body of decisions is welcome news for Patent Owners as it emphasizes the scrutiny given…

2017: A Year of CAFC Feedback & Agency Refocus

With so much attention being paid to Oil States, it was easy to lose sight of many of the more noteworthy Patent Trial & Appeal Board (PTAB) related decisions of 2017. Last year brought significant feedback from both the Federal Circuit and Board on a number important aspects of administrative trial practice. From important issues of appellate standing, the use of ancillary petition art, to a crack down on follow-on petitions and recycled prior art, both the Board and Federal Circuit delivered a host of critical clarifications.

While a bit later than usual…below are my Top 5 PTAB Trial-related Developments of 2017.  
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