SAP's mandamus action in In re SAP questions Director Stewart's discretionary denial approach, which is claimed to violate due process and the separation of powers. While the IPR statute grants the USPTO Director seemingly absolute authority to grant or deny petitions, recent changes led to a significant increase in discretionary denials. Contrastingly, Director Vidal's earlier guidance embraced the Sotera stipulation to prevent overlap in invalidity arguments between IPR and parallel litigation, which helped decrease denials and support petitioners.
SAP is challenging the Director's aggressive discretionary denial of inter partes review petitions, arguing this approach violates due process and separation of powers.
Acting Director Stewart has expanded the scope of discretionary institution denials, which now refuse to institute IPRs despite substantial patentability challenges.
Under Director Vidal, a Sotera stipulation allows petitioners to waive certain invalidity grounds in parallel litigation, restricting overlaps and keeping IPRs viable.
Director Vidal's interim guidance set forth two scenarios where denial would not occur, helping to reduce Fintiv denials and reassure petitioners.
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