The article discusses significant changes within the USPTO regarding discretionary denials of inter partes review (IPR) petitions, particularly under the six-factor Fintiv test. Recent memos indicate a pivot back to allowing denials based on parallel litigation, even amidst initial reform efforts aimed at limiting such practices. This shift is framed within a broader context of government staffing changes under the Trump administration, suggesting that institutional adjustments may impact procedural approaches at the PTAB. The complexities introduced by these discretionary decisions reflect the ongoing interaction between patent litigation and judicial processes.
The recent shift in the USPTO's approach towards discretionary denials reflects an ongoing tension between expedited patent processes and the judicial proceedings that can influence them.
The six-factor test established in Fintiv allows the PTAB to deny inter partes review when significant parallel litigation exists, highlighting a strategic use of discretion.
Recent updates from the USPTO suggest a reinstatement of discretionary denial abilities under Fintiv, marking a significant pivot from prior attempts at reform.
The ability of the USPTO Director to deny institution under 35 U.S.C. § 314(a) introduces complexities as patent litigation evolves alongside judicial processes.
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