News & Analysis as of

Inter Partes Review (IPR) Proceeding

PTAB Publishes Guidance on Motions to Amend in view of Aqua Products: Shifts Burden to…Itself

The Patent Trial and Appeal Board has issued its Guidance on Motions to Amend in view of the Federal Circuit’s long-awaited Aqua Products decision. In that splintered ruling, the Federal Circuit addressed the burden of proof...more

The Federal Circuit Criticizes A PTAB Partial Institution

by Jones Day on

The PTAB’s practice of partially instituting IPRs has been in the news lately, with Jones Day recently arguing against that practice at the Supreme Court on behalf of the SAS Institute (“SAS”). On December 5, 2017, the week...more

Obviousness v. Anticipation: That Which Doesn’t Disclose Still Could Teach

By Bryan K. Wheelock, Principal In CRFD Research, Inc., v. Matal, [2016-2198] (December 5, 2017), the Federal Circuit affirmed two Final Written Decisions invaliding claims of U.S. Patent No. 7,191,233 on user-directed...more

Oral Arguments Summary: Oil States Energy Services, LLC v. Greene’s Energy Group, LLC

by Fish & Richardson on

The Supreme Court heard oral arguments on November 27, 2017, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, where the petitioner challenged the constitutionality of inter partes review (IPR) proceedings....more

Federal Circuit Finds PTAB Should Have Invalidated Additional Claims in IPRs

In CRFD Research, Inc. v. Matal, No. 2016-2198 (Fed. Cir. Dec. 5, 2017), the Federal Circuit reviewed three IPR decisions, each on the same patent, reversing the PTAB’s finding in one of the three decisions. The PTAB had...more

Minnesota Patent Litigation Wrap-Up – November 2017

by Fish & Richardson on

This post continues our monthly summary of patent litigation in the District of Minnesota, including short summaries of substantive orders issued in pending cases. In November 2017, there were five notable decisions for...more

Judge Koeltl Agrees that “Access” to Confidential Information is Enough to Trigger a Prosecution Bar

On November 20, 2017, District Judge John G. Koeltl (S.D.N.Y.) approved a prosecution bar for “any individual who gains access” to confidential material. In addition, Judge Koeltl determined that post-issuance proceedings,...more

SAS v. Matal – Overview of Oral Argument

On Monday, November 27, 2017, the Supreme Court heard oral arguments in SAS Institute v. Matal. Issue presented - Whether 35 U.S.C. § 318(a) requires that the Patent Trial and Appeal Board (PTAB or Board) issue a final...more

Commission to Weigh in on IPR Estoppel

by Jones Day on

The Commission has determined to review an initial determination finding that Respondent Ford is estopped under 35 U.S.C. § 315(e)(2) from asserting certain invalidity defenses previously adjudicated by the Patent Trial and...more

Inherent Obviousness: Available IPR Rationale With a High Standard

by Jones Day on

On November 28, 2017, the PTAB issued a final written decision upholding the patentability of U.S. Patent No. 6,667,061 (IPR2016-01096). The ’061 patent is owned by Alkermes Pharma Ireland, Ltd. and Alkermes Controlled...more

Supreme Court Hears Oral Arguments in Oil States Regarding Constitutional Challenge to Inter Partes Review

We first covered the Supreme Court’s grant of certiorari in Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 137 S. Ct. 2239 (2017), a case with the potential to substantially alter the patent litigation landscape,...more

IPR Updates

by Goodwin on

Below are recent updates in biosimilar-related IPR proceedings: GENERAL BIOLOGICS PATENTS - On December 1, 2017, the Board granted institution of four IPRs on Celltrion’s petitions (IPR2017-01373 and IPR2017-01374) and...more

PTAB Issues Guidelines For Motions To Amend

by Pepper Hamilton LLP on

An en banc panel of the Court of Appeals for the Federal Circuit (CAFC) in the case of Aqua Products, Inc. v. Matal recently held that in an inter-partes (IPR) proceeding, the burden of persuasion rests with the challenger to...more

Federal Circuit PTAB Appeal Statistics – November 2017

by Finnegan – AIA Blog on

Through November 15, 2017, the Federal Circuit decided 275 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 205 (74.55%) cases, and reversed or vacated the PTAB on every issue in 31...more

Supreme Court Hears Argument in SAS Institute, Inc. v. Complementsoft, LLC

Perhaps overlooked in the widespread assessments of the Supreme Court's questioning of the parties in Oil States Energy Services, LLC. v. Greene's Energy Group, LLC is the argument before the Court in SAS Institute, Inc. v....more

SCOTUS Hears Oral Argument on PTAB's Practice of Instituting Review and Issuing Final Decisions on Fewer Than All Challenged...

by White & Case LLP on

On Monday, November 27, 2017, the Supreme Court of the United States heard oral argument in SAS Institute Inc. v. Matal et al. regarding whether the Patent Trial and Appeal Board (PTAB) must issue a final written decision as...more

Federal Circuit Review - November 2017

by Knobbe Martens on

Fractured Federal Circuit Holds Patent Owner Does Not Bear Burden of Persuasion in IPR Motions to Amend - In Aqua Products, Inc. v. Matal, Appeal No. 2015-1177, the Federal Circuit, sitting en banc, held that a patent...more

Federal Circuit Slams PTAB Amendment Policy

by Pepper Hamilton LLP on

On October 4, 2017, the Court of Appeals for the Federal Circuit, sitting en banc, overruled an earlier panel decision and found that the Patent Trial and Appeal Board (PTAB) had been impermissibly placing the burden of...more

PTAB Issues Guidance On Claim Amendments Caused By Aqua Products Decision

by Brooks Kushman P.C. on

In a November 21, 2017 memorandum, David P. Ruschke, the PTAB’s Chief Administrative Patent Judge, issued new guidance affecting pending and future motions to amend claims in inter partes review proceedings. The guidance...more

US: Supreme Court hears argument on constitutionality of inter partes review

by Hogan Lovells on

On November 27, 2017, the Supreme Court heard oral arguments in a case that will determine the constitutionality of inter partes review, a proceeding before the United States Patent and Trademark Office’s Patent Trial and...more

PTAB “Clarifies” Procedures For Motions To Amend

by Orrick - IP Landscape on

On November 21, 2017, the PTAB released its “Guidance on Motions to Amend in view of Aqua Products.” This guidance states that a Patent Owner’s motion to amend now only has to meet the requirements of 35 U.S.C. §316(d), and...more

Can an Industry Group Appeal an Unfavorable IPR Decision?

by WilmerHale on

Patent owners, both those practicing their invention and nonpracticing entities (NPEs), often approach companies they believe are infringing their patent rights. The patent owners threaten lawsuits if the companies do not...more

PTAB Underscores Reasons for Denying Institution Under 35 USC § 325(d)

by McDermott Will & Emery on

The Patent Trial and Appeal Board (PTAB or Board) designated as informative three decisions denying institution of inter partes reviews. CULTEC, Inc. v. Stormtech LLC, Case No. IPR2017-00777 (Grossman, APJ) (Aug. 22, 2017);...more

Spotlight on Upcoming Oral Arguments – December 2017

Ariosa appeals from a PTAB decision denying Ariosa’s IPR petition and upholding the validity of Illumina’s ’794 patent. In reaching its decision, the PTAB found that Ariosa failed to establish that the asserted reference...more

US Supreme Court Hears Oral Argument on the Constitutionality of IPR Proceedings

by White & Case LLP on

On Monday, November 27, 2017, the Supreme Court of the United States heard oral argument in Oil States Energy Services, LLC v. Greene's Energy Group, LLC over whether inter partes review (IPR)—an adversarial process used by...more

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