Patents at the PTAB: How the Times Have Changed (or Not)
The Patent Trial and Appeal Board (PTAB) has been described as the most influential patent tribunal in the world. And as 2019 ended the very establishment of the PTAB was being called into question. On October 31, 2019, the Federal Circuit ruled in Arthrex, Inc. v. Smith & Nephew, Inc. (No. 2018-2140) that the statutory scheme for appointing Administrative Patent Judges (APJs) to the PTAB violated the Appointments Clause of the U.S. Constitution. The panel did re-write the statute to save the PTAB, but in so doing made PTAB judge employees-at-will, which made no one happy. All parties, and many amici, have asked the Federal Circuit to take the case en banc.
This session will explore issues presented by Arthrex, as well as best practices for handling a variety of complex issues, such the statutory bar, claim construction issues, the current state of what it means to be a “real party in interest”, challengers lacking standing to appeal, the Precedential Opinion Panel and other changes that have impacted practice, procedure and outcomes before the PTAB.
- Federal Circuit Says PTAB Judges Are Not Constitutionally Appointed
- Witnesses Tell House IP Subcommittee, “It’s Up to You” to Fix Arthrex
- One Way or Another, Arthrex Promises to Put the PTAB on Trial
- All Parties in Arthrex Want the Full Federal Circuit to Render a Better Decision
- Federal Circuit vacates PTAB over error in determining real party in interest in RPX petition
- PTAB Institutes IPR, Finds Unified Patents is Sole Real Party in Interest
- PTAB Says Alphabet is No Real Party-in-Interest With Google
- USPTO Substantially Revises PTAB Standard Operating Procedures
About MCLE Credit
1.0 hours MCLE has been approved in Texas, Arkansas and Oklahoma. 1.2 hours MCLE approved in Missouri. Application for pending in Virginia.
States including California, Florida, Illinois, Hawaii, New Jersey, New York, North Dakota and Wisconsin accept credits when a course has been approved by another MCLE jurisdiction, as has occurred here.
Other states require attending attorneys to complete a form requesting credit. Some states, such as Alabama, Georgia, Louisiana, Minnesota, Ohio, Pennsylvania, Tennessee and Washington require attorneys to submit an application for approval of courses taken out of state. These states sometimes require the application to be submitted immediately following the completion of the CLE activity, please check the requirements in your state.