Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- a report discussing how the Federal Circuit recently confirmed “the narrow nature of the path to appeal the U.S. Patent and Trademark Office’s decisions whether to launch validity reviews”;
- a blog post highlighting how “two more amici have now weighed in . . . in a case challenging the U.S. Patent and Trademark Office’s (USPTO’s) rescission of former Director Kathi Vidal’s guidance on discretionary denial”;
- a piece discussing how before a recent Federal Circuit’s decision courts wrestled “with the extent to which IPR estoppel bars patent challengers in district court litigation from raising invalidity arguments based on prior art that was or reasonably could have been raised”; and
- a blog post highlighting how “a backlog of cases before” the Merit Systems Protection Board “that had been all but cleared out earlier this year has started to build again, as the board lacks a quorum to consider appeals of decisions by the agency’s hearing officers.”
Michael Shapiro wrote a report for Bloomberg Law discussing how the Federal Circuit recently confirmed “the narrow nature of the path to appeal the U.S. Patent and Trademark Office’s decisions whether to launch validity reviews.” According to Shapiro, the Federal Circuit’s decision in IGT v. Zynga Inc. indicates “that the sort of shenanigans that might allow for appellate review of a PTAB institution decision is a very narrow category, but left it to future Federal Circuit panels to decide what exactly qualifies.”
Eileen McDermott filed a blog post on IP Watchdog highlighting how “two more amici have now weighed in . . . in a case challenging the U.S. Patent and Trademark Office’s (USPTO’s) rescission of former Director Kathi Vidal’s guidance on discretionary denial.” As explained by McDermott, “three retired judges, the former vice chair of the International Trade Commission (ITC) and six academic scholars filed a brief on Friday” arguing that “inter partes review (IPR) petitioners do not have a property right in IPR petitions, which ‘is a necessary predicate for applying constitutional due process protections.'”
Joseph Marinelli and Bailey Sanders penned a piece for Law 360 discussing how before a recent Federal Circuit’s decision courts wrestled “with the extent to which IPR estoppel bars patent challengers in district court litigation from raising invalidity arguments based on prior art that was or reasonably could have been raised.” According to Marinelli and Sanders, however, in Ingenico Inc. v. IOENGINE LLC the court held that “a patent challenger may rely on a prior art patent or publication to support an anticipation or obviousness argument in an IPR proceeding and use the same prior art to support a different invalidity theory.”
FEDweek Staff wrote a blog post for FEDweek highlighting how “a backlog of cases before” the Merit Systems Protection Board “that had been all but cleared out earlier this year has started to build again, as the board lacks a quorum to consider appeals of decisions by the agency’s hearing officers.” According to the authors, “MSPB’s hearing officers received a surge of cases in late February and March following the widespread layoffs of probationary employees” and “the number of ‘petitions for review’ being received at the board level has started to increase–as has the backlog, in the absence of a quorum.”