Discretionary Consideration Bars ReturnMail Side-Step Via Intervenor
Last fall, I explained that the Patent Trial & Appeal Board (PTAB) was considering the relationship of government contractors in Court of Federal Claim (COFC) patent disputes against the U.S. government. That is, given the typical existence of a contract between the government and the contractor, what such a relationship meant for RPI/privy determinations.
Perhaps not surprisingly, the PTAB has found privity to exist between the government and its contractors in common contractual scenarios. For example, where the contractor intervenes in the COFC matter. And that the later AIA petition of the contractor (outside the 315(b) window of the government) is barred.
Perhaps more surprisingly, however, is the discretionary consideration under 314(a) relative to ReturnMail that would effectively close the PTAB to patent disputes at the COFC.