E-mail Newsletter

  • Enter your e-mail address below to receive the "Patent Docs" e-mail newsletter.

Enter your email address:

Delivered by FeedBurner

Contact the Docs

Docs on Twitter


About the Authors

  • The Authors and Contributors of "Patent Docs" are patent attorneys and agents, many of whom hold doctorates in a diverse array of disciplines.

Disclaimer

  • "Patent Docs" does not contain any legal advice whatsoever. This weblog is for informational purposes only, and its publication does not create an attorney-client relationship. In addition, nothing on "Patent Docs" constitutes a solicitation for business. This weblog is intended primarily for other attorneys. Moreover, "Patent Docs" is the personal weblog of the Authors; it is not edited by the Authors' employers or clients and, as such, no part of this weblog may be so attributed. All posts on "Patent Docs" should be double-checked for their accuracy and current applicability.

Pharma-50-transparent_216px_red

Become a Fan

« Guest Post -- The Emergent Microbiome: A Revolution for the Life Sciences -- Part XIII: The Microbiome and Antibiotic Resistance | Main | Webinar on Oil States Energy Services, LLC v. Greene's Energy Group, LLC »

October 04, 2017

Comments

The cogitations comment - and the extent to which that comment were applied - are indeed a troubling reflection on just how badly the AIA was written.

That we have an en banc body of judges, whose primary purpose is to instill clarity to patent law, unable (unwilling?) to come close to any meaningful consensus** on the law should be one gigantic red flag.

**Outside of the extremely narrow holding of the case - note as well that even what is the holding appears to be NOT agreed upon between the different pluralities, vis a vis OMalley and one of the FIVE other opinions.

Oil States may yet clean this up, but Congress should take off its blinders (blinders induced by Citizens United), and get ready to focus on examination in the fist instance INSTEAD of any post grant mechanism.

Hey Andrew,

This fractured Federal Circuit en banc decision just proves how poorly the AIA (Abominable Inane Act) was drafted by Congress generally and specifically with regard to IPRs. It further highlights how PTAB has been allowed operate as a rogue adjudicator in violation of due process generally and the APA specifically-O'Malley's and especially Reyna's opinion noted that the requirement by the USPTO for the patent owner to have the burden to prove the patentability of the proposed amended (substitute) claim was based on a PTAB panel ruling, one that was even initially denominated as informative, not precedential. In other words, the USPTO/PTAB failed to even provide "notice and comment" required by the APA for such a rule. Hopefully, SCOTUS will make this problem with IPRs academic by ruling in Oil States (as it should) that PTAB cannot constitutionally adjudicate the validity of issued patents (which are clearly personal property as recognized by statute and by over 200 years of court precedent, including by SCOTUS in McCormick Harvesting).

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name is required. Email address will not be displayed with the comment.)

October 2017

Sun Mon Tue Wed Thu Fri Sat
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31