Fintiv

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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?

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

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 Fintiv.  Register (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…

APA Challenge Strikes a Chord

I’ve read a number of articles over the past few days that argue since the mandamus on Fintiv failed in Mylan Laboratories Ltd. v. Janssen Pharmaceuticals N.V., that this decision somehow forecloses the relief sought in the APA suit against the USPTO — not even close.  The question of appellate jurisdiction over denied institution decisions (or what would amount to a proper mandamus) has absolutely nothing to do with the direct challenges made by the plaintiffs in the pending APA lawsuit.

Indeed, I expect the application of Fintiv to be enjoined within weeks (if not sooner).
Continue Reading PTAB Fintiv Factors Likely to Be Enjoined as APA Violation

APA Action & Mandamus Petition Simultaneously Challenge PTAB’s NHK/Fintiv Framework

Back in June, I predicted that an APA action against the USPTO and/or a mandamus petition to the Federal Circuit was inevitable given the PTAB’s practice of denying IPR petitions in favor of competing district court trial dates. Well…here we are.

Yesterday,  Director Iancu was sued by a group of large tech companies for allegedly violating the APA by denying IPR petitions on the basis of a competing trial date, and late last week, one of the same companies also filed a mandamus petition seeking to force the agency to consider the merits of a petition denied as a matter of discretion even though it was filed some seven months before the 315(b) deadline.

Never a dull moment at the PTAB.
Continue Reading USPTO Sued Over Discretionary Denials

Board Acknowledges Slipping WDTX Trial Date

Some weeks back I highlighted the institution decision in Sand Revolution II LLC., v. Continental Inter Modal Group – Trucking LLC. (IPR2019-01393), which held that despite most General Plastic Factors favoring institution, the majority felt as though a looming WDTX trial date trumped all other GP factors and denied institution.  After petitioner’s unsuccessful request for a Precedential Opinion Panel (POP) hearing, the Board ordered additional briefing.

Today, the Board reversed course instituting the Sand Revolution IPR.  In the process, the Board provided some insight into slipping WDTX trial dates and steps petitioners can take to help avoid discretionary denials of parallel AIA trial petitions.
Continue Reading PTAB Reverses Discretionary Denial Based on WDTX Trial