The fifth-year anniversary of the America Invents Act brought with it a number of dramatic developments in the legal landscape of trials before the Patent Trial and Appeal Board (PTAB). Multiple cases were heard by the U.S. Court of Appeals for the Federal Circuit sitting en banc, as well as taken up for review by the U.S. Supreme Court. We provide brief summaries of some of the notable cases decided in 2017, focusing on the practical impact for lawyers and stakeholders. We also reflect on what 2018 may bring for PTAB litigators and litigants.
Aqua Products, Inc.
Sitting en banc to evaluate whether the PTAB’s standard for amending claims in post-grant proceedings was consistent with the text of the statute, the Federal Circuit split on whether the AIA clearly placed a burden on petitioners to successfully contest any amendment offered by a patent owner. Several judges took the view that the statute was unambiguous – that petitioners carry such a burden and that patent owners should be allowed to amend if they follow certain rules.