Mapping The Contours Of PTAB Discretionary Denials In 2020

By Joseph Matal (December 15, 2020, 5:05 PM EST) -- Over the course of 2020, application of the new policy of using discretion to reject petitions for inter partes and post-grant review has exploded at the U.S. Patent and Trademark Office.

The multifactor tests announced in Apple Inc. v. Fintiv Inc.[1] and Valve Corp. v. Electronic Scripting Products Inc.[2] have become a major source of denials of Patent Trial and Appeal Board review.[3] This article maps the contours and evolution of these policies, highlighting recent developments of which PTAB practitioners need to be aware.

In particular, these new policies have become more restrictive over the last few months. Discretionary denials now...

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