Patent Attack Strategy in Doubt Following Agency Guidance

New Patent and Trademark Office guidance discouraging simultaneous attacks on the same patent has left practitioners uncertain about using that strategy to seek administrative reviews.

The agency in July said parties filing more than one validity challenge against a patent “at or about the same time” for a Patent Trial and Appeal Board review should explain the differences between and rank them in order of importance. Filing a single petition “should be sufficient” in most situations, the agency said.

Some practitioners are worried that the PTAB may start dismissing some legitimate challenges just because parties file several petitions.

If that ...