US Supreme Court Case Could End Patent Office Reexamination Procedure
The court has agreed to take an oil-industry case challenging patent office inter partes review procedures on the grounds they violate a constitutional right to trial by jury. IPRs have become an increasingly common approach in medtech and elsewhere for challenging patents outside of court, but not without controversy.
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IPR process can continue, but the Patent Trial and Appeals Board must issue a final written decision on all claims raised by the challenger – not just some of them, court says; rulings in two closely watched cases mean that IPR proceedings can continue unabated, but challengers may need to rethink how they go about challenging innovator patent claims.
The inter partes review process, which provides a non-court strategy for invalidating patents, could conceivably come to an end depending on the Supreme Court's ruling in a case this spring. Device firms have been wary of the IPR process, which can weaken patent protections, but attorneys point out that it has also been a helpful tool in fighting against the growing threat of patent trolls in medtech. While bets are for upholding the system, legal experts say device companies could fall back to other processes previously used to stop patent trolls.
A case before the Supreme Court this term will bring the five-year-old PTAB patent examination system into question, while two cases involving are being appealed for review. Of the pending cases, one involves a circuit split on what type of damages consumers must suffer to be allowed to sue medtech companies, while the other looks at the right of states to use outside counsel in suits against manufacturers.