Motion to Amend Burden Final Rule Published
By Grant Hebrank* and Josh Nightingale - The Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) issued a final rule regarding the allocation of the burden of persuasion for the patentability of substitute claims on...
PRECEDENTIAL: Trial Court Stay Weighs Strongly Against Fintiv Denial
By Jennifer Bachorik and Matt Johnson - The USPTO designated Snap, Inc. v. SRK Tech. LLC, IPR2020-00820 (PTAB October 21, 2020) (Paper 15) (“Snap”) as precedential as to § II.A regarding its discretion under 35 U.S.C. § 314(a) to deny institution of inter partes...
Arthrex: Supreme Court Asks “Who’s The Boss?”
By Nate Andrews, Greg Castanias, and Dave Maiorana - On March 1, 2021, the Supreme Court heard oral arguments in Arthrex v. Smith & Nephew, No. 19-1434, on March 1, 2021, asking whether the appointment of PTAB judges is consistent with the way that “Officers of...
Arthrex Argued at Supreme Court
On Monday the Supreme Court heard arguments in the Arthrex case (Nos. 19-1434; -1452; -1458) (click link for transcript) regarding whether PTAB judges are principal officers, who must be appointed by the president and confirmed, or whether they are inferior officers...
Limited Fintiv Four Stip Unpersuasive
By Tom Ritchie - The PTAB considers the six Fintiv factors to determine whether to exercise its discretion to deny institution of an IPR petition in view of a parallel litigation. In that analysis, Fintiv factor four requires the PTAB to evaluate the overlap between...