A Proposed Alternative To PTAB Discretionary Denial Factors

Law360 (October 1, 2020, 6:24 PM EDT) -- We propose replacing the Patent Trial and Appeal Board's current NHK-Fintiv factors, derived from the precedential decisions NHK Spring Co. v. Intri-Plex Technologies Inc. and Apple Inc. v. Fintiv Inc., with the alternative "Babcock-Train factors" set forth herein.[1]

These alternative factors have been crafted in an effort to provide clearer institution guidance to the PTAB's administrative patent judges and to afford a neutral perspective with respect to both the particular posture of the party in the PTAB proceeding — petitioner or patent owner — and the specific venue of the parallel district court litigation.

To be clear, we do not suggest that...

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