February 5, 2018
Authored and Edited by David C. Seastrunk; Cory C. Bell
In Arthrex v. Smith & Nephew, a split panel affirmed a PTAB decision entering an adverse judgment when a patent owner disclaimed all claims challenged in a IPR petition prior to institution. By disclaiming all claims at issue, the patent owner was attempting to avoid the estoppel effects of 37 C.F.R. § 42.73(d) that apply with issuance of an adverse judgment.
The Federal Circuit also confirmed that a patent owner can appeal a pre-institution adverse judgment ruling under 35 U.S.C. § 1295, because an adverse judgment is a final decision disposing of an IPR proceeding.
For more details on this decision, check out this article by Pier DeRoo. The Federal Circuit also recently held en banc that appellate review was available for any time bar determinations by the PTAB under 35 U.S.C. § 315(b), overruling precedent. A detailed writeup of that decision, prepared by David Weingarten, is available here. Stay tuned to the AIA blog for updates as these events occur.
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Copyright © 2018 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.
DISCLAIMER: Although we wish to hear from you, information exchanged in this blog cannot and does not create an attorney-client relationship. Please do not post any information that you consider to be personal or confidential. If you wish for Finnegan, Henderson, Farabow, Garrett & Dunner, LLP to consider representing you, in order to establish an attorney-client relationship you must first enter a written representation agreement with Finnegan. Contact us for additional information. Additional disclaimer information.
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