IPR: A 2nd Bite At The Apple For Hatch-Waxman Litigants

Law360, New York (March 11, 2014, 6:36 PM EDT) -- With the advent of inter partes review, Congress authorized a second and parallel adjudicatory proceeding for generic pharmaceutical companies to challenge the validity of Orange Book-listed patents.[1] The first option, of course, was in litigation before a United States district court. Congress intended the IPR to offer a cheaper, more streamlined avenue to challenge patents than in district court.[2] But having parallel proceedings makes the most sense if there’s some binding effect that runs from one venue to the other.

Recent decisions by the Federal Circuit and the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board illustrate that the...

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