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On Final Written Decision in Pure Fishing, Inc. v. Globeride, Inc., the PTAB determined the Petitioner had failed to establish by a preponderance of the evidence that claims 1 and 2 of U.S. Patent 5,921,489 were unpatentable.  The PTAB’s decision turned on the question of whether two cited references were “analogous to the claimed…

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…

The recent decision in Wi-Fi One v. Broadcom, has presented an interesting opportunity for the Federal Circuit to reconsider its jurisprudence on the reviewability of the PTO’s institution decision post-Cuozzo and in particular the application of the time bar set forth in 35 U.S.C. § 315(b).  The language of 35 U.S.C. § 315(b)…

Activision Blizzard, Inc. v. Acceleration Bay, Inc. presents an interesting situation emphasizing the limited scope of IPR proceedings and the interplay between PTAB practice and co-pending litigation.  In Activision Blizzard., the Petitioners challenged claims of U.S. Patent 6,920,497, a patent directed to “a method of connecting a seeking computer through a portal computer to…

Praxair filed a first petition for inter partes review of claims 1-19 of U.S. Patent 8,846,112.  The PTAB instituted review based on the first petition and concluded that all claims, except claim 9, were unpatentable.  In doing so, the PTAB determined that the “providing information” step in claim 1, and “similarly-worded claims steps in other…

The question of whether PTAB trials are litigation-like or examination-like (or some hybrid of the two) has been implicated on several occasions.  The most recent one is in the In re Aqua en banc hearing Order.  No. 2015-1177 (Fed. Cir. Aug. 12, 2012).  While the PTAB has repeatedly stated it does not examine proposed amended…

Daicel Corporation v. Celanese Int’l Corp., No. IPR2015-00171, Paper No. 86 (P.T.A.B. June 23, 2016) sheds important insight on how the Board applies the broadest reasonable interpretation (BRI) standard for claim construction, and the application of intrinsic and extrinsic evidence.  In that case, the Board instituted an IPR based on both § 102(b) and…