APA Violation In IPR Can Turn Into Harmless Error On Appeal

By Richard Marsh, Lucas Tomsich and Reid Dodge, Faegre Baker Daniels LLP (May 9, 2017, 1:35 PM EDT) -- To date, the Federal Circuit has largely affirmed decisions of the Patent Trial and Appeal Board, particularly in regards to inter partes review decisions. As of April 1, 2017, the Federal Circuit has completely affirmed PTAB IPR decisions 77 percent of the time.[1] Around 5 percent of appeals are dismissed before the Federal Circuit reaches a verdict. Most interesting here, though, are the 18 percent of appeals in which as least some issues were vacated, remanded or reversed. Of those decisions in which the Federal Circuit finds some error in the PTAB's decision, several focus on violations of the Administrative Procedure Act, such as adopting a new claim construction without giving a party a chance to respond or present evidence. In IPR Licensing Inc. v. ZTE Corporation, however, the Federal Circuit demonstrates how the standard of review applied on appeal can ultimately render APA violations inconsequential by reducing them into nothing more than harmless error....

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