Validity Challenges: District Court Vs. Patent Office

Law360, New York (December 18, 2013, 8:31 PM EST) -- In 2013, inter partes review and covered business method review — two new procedures created by the America Invents Act — fully joined ex parte re-examination as options for challenging validity in the U.S. Patent and Trademark Office. Each offers a profoundly different forum for adjudicating validity compared to U.S. district court. At the same time, many PTO-based challenges proceed in parallel with a related district court litigation, creating the possibility of inconsistent results — a possibility that was realized in two important 2013 decisions: Fresenius USA Inc. v. Baxter International Inc., __ F.3d __ (Fed. Cir. 2013) and Apotex Inc....

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