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On November 27, 2017, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the Supreme Court will hold oral argument to determine the constitutionality of the inter partes review (“IPR”) process implemented by the America Invents Act.  Clearly, this case has the potential to drastically alter the patent litigation landscape if IPR

On September 26, 2017, in In re Smith International, Inc., the Federal Circuit reversed the PTAB’s decision affirming an examiner’s final rejection in an ex parte reexamination. During the ex parte reexamination, the examiner rejected claims 28-36, 39-46, 50, 79-81 and 93-99 of U.S. Patent No. 6,732,817 (“’817 patent”) as anticipated or obvious in

In an effort to combat pharmaceutical patent holders, several companies are now filing petitions for post-grant review on the theory that the claims are unpatentable for lacking sufficient written description and enablement. Although the number of post-grant review proceedings remains fairly small in comparison to inter-partes review proceedings, the recent increase in filings by generic

A failure to provide an adequate explanation for findings of obviousness is becoming the Federal Circuit’s recurring rationale for vacating decisions by the Patent Trial and Appeal Board. In recent months, the Federal Circuit has consistently overturned decisions by the Patent Trial and Appeal Board based on the Board’s lack of an adequate reason or

In Coalition for Affordable Drugs VIII, LLC, v. The Trustees of the University of Pennsylvania, No. IPR2015-01835, Paper No. 56 (P.T.A.B. March 6, 2017), the PTAB concluded that despite evidence that the combinations of prior art references may have disclosed the claimed invention, an ordinary artisan would not have had a reasonable expectation of

An increasing number of cases demonstrate the challenges that the Federal Circuit and parties face when dealing with standing questions in appeals from administrative agencies.  These challenges only emphasize the growing need for a change in the Court’s rules of procedure.

Standing in cases from the U.S. Patent and Trademark Office (“PTO”) has become a