PTAB under fire at the Supreme Court

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Andrew Rapacke
Andrew Rapacke is a registered patent attorney and serves as Managing Partner at The Rapacke Law Group, a full service intellectual property law firm.

The Supreme Court will hear oral arguments in two separate cases today regarding the constitutionality of the Patent Trial and Appeal Board (PTAB) system within the U.S. Patent and Trademark Office (USPTO).

One case challenges the constitutionality of the PTAB in its entirety for its ability to circumvent the courts to invalidate patents. Critics argue that the PTAB takes away a patent holder’s right to a jury trial and that the legal standards used by the PTAB’s are far divergent from those used by the courts, which has led to a substantially greater number of invalidations. Supporters of the PTAB have lauded the system for its streamlined process, speed, and economic efficiency.

The leading PTAB filer, Apple Inc., has cited PTAB legal costs as being on average only a ninth of the cost of the federal courts. Although this is not the first patent review system created by Congress, previous procedures were inefficient, slow, and often became moot due to the federal courts’ ability to issue rulings sooner, consequently, they never faced such strong challenges.

With the Court’s newest appointment, it is unclear how it will decide.

Source – Bloomberg

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