The USPTO’s Patent Trial and Appeal Board (PTAB) has released its March 2017 statistics.  The end of March marking the halfway point in the USPTO’s fiscal year, the overall totals for fiscal year 2017 (FY 2017) are coming into focus. 

In 2014, the U.S. Supreme Court established the current framework for determining patent-eligible subject matter in Alice_[1].  The Alice framework is a two-part test, with step one requiring a determination regarding whether a claim is directed to an abstract idea. 

Old Republic’s IPR petition was effectively unopposed due to a defect in the chain of assignment, which led the PTAB to hold all claims unpatentable without considering arguments or evidence submitted in favor of patentability in Old Republic Gen. Ins. Group, v. Owner of U.S. Patent No. 6,519,581, IPR2015-01956, Paper 39 & IPR2015-01957, Paper 38 (P.T.A.B. Apr. 18, 2017).

The PTAB granted-in-part motions to amend in three related proceedings:  Activision Blizzard, Inc. v. Acceleration Bay, LLC, IPR2015-01953, Paper 107 (P.T.A.B. sealed on March 23, 2017, made public on April 19, 2017); IPR2015-01972, Paper 111 (P.T.A.B. sealed on March 23, 2017, made public on April 19, 2017); IPR2015-01996, Paper 101 (P.T.A.B. sealed on March 29, 2017, made public on April 19, 2017).

On March 21, 2017 the Supreme Court issued a monumental holding removing the availability of laches as a defense in a claim for damages under patent infringement. The case changes decades of legal precedent, and adopts reasoning similar to that used by the Court in a 2014 copyright case.

The PTAB weighed five factors in its discretionary denial of a second IPR petition filed by the same petitioner in Xactware Solutions, Inc. v. Eagle View Tech., Inc., IPR2017-00034, Paper 9 (P.T.A.B. April 13, 2017).

On April 6, 2017 the FDA Center for Devices and Radiological Health formally approved 23andMe’s Personal Genome Services Test as a Class II Medical Device.

The Federal Circuit affirmed-in-part and reversed-in-part the PTAB’s final written decisions on Wasica’s tire pressure monitoring patents in Wasica Finance GmbH v. Continental Automotive Sys., Inc., No. 2015-2078 (Fed. Cir. Apr. 4, 2017).  The Federal Circuit affirmed the PTAB’s upatentability determinations based on certain claim constructions.

The Federal Circuit affirmed the PTAB’s final written decisions holding that claims directed to Novartis’s dementia drug Exelon were obvious in Novartis AG v. Noven Pharm. Inc., No. 2016-1679 (Fed. Cir. Apr. 4, 2017).

The Federal Circuit affirmed the PTAB’s final written decision holding that claims directed to Novartis’s multiple sclerosis drug Gilenya were obvious in Novartis AG v. Torrent Pharmaceuticals. Ltd., No. 2016-1352 (Fed. Cir. Apr. 12, 2017). Significantly, the Federal Circuit found that the PTAB’s use of a non-instituted reference in its final written decision was not improper.