Arthrex and Reexamination

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Virnetx Inc. v. Cisco Systems, Inc., Appeal No. 2019-1671 (Fed. Cir., May 13, 2020).

Inter partes reexamination was a non-trial procedure that allowed third parties to participate in patent reexamination, and has now been replaced by inter partes and post-grant reviews. Inter partes reexaminations were conducted before a panel of examiners, and then subject to review by the PTAB in an appeal capacity. Here, Cisco and the Director of the USPTO sought rehearing of a decision that extended the Arthrex doctrine to inter partes reexaminations.

The Federal Circuit denied the petition and held that inter partes reexaminations were sufficiently similar to other post-grant proceedings that the Arthrex doctrine applied. Slip op. at 4. The decision, however, is limited to inter partes reexaminations, and does not extend to ex parte appeals of patent application final rejections. A decision on ex parte appeals is awaited.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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