How PTAB Reviews Examiner Errors For IPR Institution

By Jeffrey Townes and Hongling Zou (July 23, 2020, 5:51 PM EDT) -- The Patent Trial and Appeal Board has designated a handful of precedential and informative decisions relating to the board's discretion under Section 325(d) of the Patent Act to deny the institution of an inter partes review when the same or substantially the same prior art or argument was previously presented to the office.

These cases, however, almost exclusively focus on examples of when the board has exercised its discretion to deny institution.[1] The board provides very few concrete examples in these decisions illustrating when it chooses not to use its Section 325(d) discretion based on a material error by the examiner....

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