The US Patent and Trademark Office announced in a February 28 bulletin it was scrapping a June 2022 guidance memo that narrowed a controversial framework set up in the precedential Apple v. Fintiv decision, under which the agency’s Patent Trial and Appeal Board had discretion to turn away challenges to patents subject to parallel district court litigation.
Bracewell’s Kit Crumbley told Bloomberg Law that “[a]ny sort of sudden news like this risks destabilizing the entire practice and the entire system” of patent validity challenges and makes it harder for lawyers to advise clients on the chances of a successful petition.
“If you’re a patent litigator at district court, unless you had some big Supreme Court case that came down and sort of changed everything, when a new administration comes in, things don’t change on the ground in patent litigation,” he said. “But now we’re starting to see maybe that’s not the case when it comes to the PTAB.”
