Trends In IPR Institution: Part 2 — Inter Partes Art, Arguments

Law360, New York (January 12, 2017, 12:26 PM EST) -- Virginia L. Carron

Ashley M. Winkler This analysis is the second in a two-part series describing trends in the Patent Trial and Appeal Board’s exercise of its discretion to deny institution of inter partes review. As described in the first article, the PTAB has discretion under 35 US.C. § 325(d) to decline institution of inter partes review when “the same or substantially the same prior art or arguments” were previously presented to the U.S. and Trademark Office. Although no statute or regulation provides guidance on what constitutes “the same or substantially the same prior art or arguments,” it is possible to...

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