Knobbe Martens partner Ted Cannon was quoted by Bloomberg Law in the article “Gray Areas in Patent Review Denials Catch Agency Director’s Eye”.
The article discusses U.S. Patent and Trademark Office Director Kathi Vidal’s use of her director review authority in clearing up “when it is appropriate for the Patent Trial and Appeal Board (PTAB) to use its discretion to reject a validity review based on factors other than the patent’s merits.”
Mr. Cannon commented, “I think [Vidal] is definitely wanting to exert her influence over the board on the institution stage of the proceedings.”
Speaking on Vidal’s finding last month in a case where she found the board had “improperly relied on what’s known as … ‘General Plastics’ …to dismiss challenges instead of addressing the underlying merits of the case,” Mr. Cannon commented that “[i]t indicates a desire on the director’s part that the merits be given a little more weight in the consideration than things that might be considered procedural.”
The article also notes that earlier this year, Vidal said she would review the PTAB’s decisions to examine two patents based on validity challenges brought by two entities formed after VLSI Technology LLC secured a $2+ billion verdict against Intel and which appear to make nearly identical invalidity claims as Intel did. Vidal asked the parties and the public to comment on how she and the PTAB should assess and respond to conduct that “thwarts” the goals of the Patent Office or the America Invents Act. Cannon notes that “[a] lot of people are waiting to see that with anticipation.”
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