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Recently, the Federal Circuit held that Administrative Patent Judges (“APJs”) comprising the 3-member USPTO Patent Trial and Appeal Board (“PTAB”) are unconstitutionally appointed in violation of the Appointments Clause of the Constitution. The court promptly remedied the violation and limited its effect on other PTAB decisions.

Continue Reading The Federal Circuit’s Determination That Administrative Patent Judges are Unconstitutionally Appointed

A recent Federal Circuit opinion held that state sovereignty does not shield states from  inter partes review (“IPR”) before the Patent Trial and Appeal Board (the “Board”). Regents of the Univ. of Minn. V. LSI Corp., No. 2018-1559 (Fed. Cir. June 14, 2019) (opinion available here). This decision is another strike against sovereign

An upcoming Precedential Opinion Panel (“POP”) at the Patent Trial and Appeal Board (“PTAB” or “the Board”) may offer improved clarity for petitioners and patent owners when a petitioner relies on non-patent literature in challenging a patent.

Background

Hulu, LLC sought inter partes review (“IPR”) of U.S. Patent No. 5,806,062 (“the ’062 patent”) asserting claims

Last week, the first Precedential Opinion Panel (“POP”) entered a decision examining the scope of joinder available under 35 U.S.C. § 315(c). Proppant Express Investments, LLC v. Oren Techs., LLC, Case IPR2018-00914, Paper 38 (Mar. 13, 2019). The POP made two determinations about the statutory authority of the Patent Trial and Appeal Board (“the

On February 7, 2019, the Federal Circuit dismissed an appeal because the IPR petitioner, Momenta Pharmaceuticals, essentially “lost” its constitutional standing when – prior to completing its appeal to the Federal Circuit – it abandoned development of its proposed biosimilar after failed Phase 1 clinical trials. Momenta Pharm., Inc. v. Bristol-Myers Squibb Co., No.

The Patent Trial and Appeal Board (“the PTAB” or “the Board”) is preparing for its first instance of the newly created Precedential Opinion Panel (POP). Proppant Express Invs., LLC v. Oren Techs., LLC, IPR2018-00914, Paper 24 (PTAB Dec. 3, 2018).  Interested parties may have had a busy holiday season, because initial briefing was due