Reexamination v. Litigation: Which Controls?


The Translogic cases suggest an answer to the question: “What happens to a judgment of infringement when the claims are later rejected in reexamination?” The cases — which are not yet over — appear to show that a finding of invalidity in the Patent Office can trump a validity finding and an infringement judgment from a district court. These proceedings provide a rare window into the interplay between judicial and administrative approaches to patents and claim construction. They also raise questions about the nature of appellate review, and how the patent system interacts with the Constitutional requirements of the Seventh Amendment reexamination clause and the Article II

Appointments clause. The timeline of procedural events — although complicated, illustrates the significant substantive issues.

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