Partner Nicholas Restauri was quoted in a Law360 article regarding US Patent and Trademark Office Director Kathi Vidal’s reviewal of the holdings of the Patent Trial and Appeal Board (PTAB).
In her most recent decision, in early September, Vidal reviewed and upheld the PTAB’s determination that a patent challenger whose petition was denied based on the timing of a related infringement case could not seek rehearing by stipulating that it wouldn't raise the same invalidity issues in district court.
Such stipulations are intended to avoid conflicting decisions and duplicative efforts, so letting petitioners file them after the board denies review “frustrates these goals and would open the door to gamesmanship,” wrote Vidal.
Vidal has made clear that those stipulations are “a quid pro quo to avoiding a discretionary denial that must be affirmatively invoked prior to the board's institution decision," Nicholas said.
By taking up the issue on her own initiative, Vidal has shown that she “is willing to step in as needed to ensure the integrity of PTAB’s procedures and policies relating to streamlining invalidity challenges in cases involving parallel district court proceedings.”