Fewer patent challenges are being turned away under a rule that allows an administrative tribunal to take parallel litigation into account, as the agency faces calls to revisit the rule and lawyers adjust their approaches.
The US Patent and Trademark Office’s framework under Apple v. Fintiv allows the Patent Trial and Appeal Board to deny review based on a parallel infringement case advancing in federal district court or at a trade agency.
So far this year, the PTAB has relied on Fintiv to deny review in less than 10% of the cases in which the board evaluated the rule’s factors, ...