In 2017, the Federal Circuit provided guidance on the Administrative Procedure Act (APA), a law that had not had a major role in patent litigation until the rise of America Invents Act proceedings at the Patent Trial and Appeal Board (PTAB). On a few occasions, the PTAB was faulted for violating the Administrative Procedure Act by not allowing a response to an argument and for not adequately explaining its reasoning in some decisions. Law360 reached to Finnegan partner Erika Arner for her insight on whether attorneys think procedural issues will continue to be a focus in 2018 and what that means for litigants.
Erika said, "Whereas the APA issues were sort of the interplay between patent law and the Administrative Procedure Act, I think the coming issues will be more sort of open issues around how to interpret parts of the AIA." She said she doesn't believe the Federal Circuit will make cases turn on arguments about APA issues, as the court has laid out certain parameters and the PTAB has been adjusting accordingly. She said, "I think it'll be a rare case where the [Federal Circuit] will actually reverse and remand based on those APA violations. Going forward, I think we'll see that trend down."
