Back in January, I identified the Board’s expanding view of 314(a) discretion as the most significant development of 2018. In that earlier post, I predicted that one such 314(a)/325(d) case, NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc., would be designated precedential in 2019.
Yesterday, the PTAB delivered on my prediction.
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As I have mentioned on a few CLE panels as of late, the recent changes to the Patent Trial & Appeal Board’s (PTAB) Trial Practice Guide invite parties to suggest additional General Plastic factors. These factors are applied by the Board to determine whether to exercise its discretion to deny institution under § 314(a) in applicable cases. With the efficacy of 325(d) now muted after SAS (given it’s ground-by-ground based application), the potential “kill shot” offered by 314(a) has attracted more attention in recent Patent Owner Preliminary Responses.
With the new Trial Guide update barely a month old, the Board has already begun to expand its General Plastic factors. Two September decisions highlight the degree to which the Board may be more open to considering parallel litigation dynamics as additional factors.
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