Vidal Issues Non-Binding Guidance on Fintiv Denials

On June 21, U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal released new guidance for discretionary denials for patent validity review at the Patent Trial and Appeal Board (PTAB). Life Sciences IP Review interviewed Finnegan partner and former PTAB administrative patent judge Trenton Ward to discuss the USPTO memorandum.

Trenton explained the guidance provides clarification of the PTAB’s application of the Fintiv rule, but it is not binding on the PTAB. He stated, “The guidance specifically addresses one of the more controversial topics regarding the PTAB’s reliance on a district court’s scheduled trial date for Fintiv consideration. A district court’s scheduled trial date, by itself, is not a good indicator of whether the PTAB’s final written decision will be released before the district court trial.”

Trenton added that the guidance states parties may present “median time-to-trial for civil actions in the district court,” and the PTAB will examine “the speed with which the district court case may come to trial and be resolved.”

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