PTAB Imposes Double Jeopardy on Patent Owners

, Corporate Counsel

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Even if you believe the Patent Trial and Appeal Board’s post-grant proceedings have generally played a positive role in eliminating some junk patents, the evidence shows that PTAB is violating the spirit of §325(d) of the America Invents Act by failing to limit double jeopardy and the serial harassment of patent owners in patent examination.

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  • Kevin P. Moran

    By Mr. Sheafe’s standard, a Patent Owner has the “constitutional” right to avoid “double jeopardy” (i.e., AIA Trial), even if the PTO did a poor job during ex part examination and granted a crappy patent. Call it “ludicrous,” “Orwellian,” “bizarre,” “ridiculous,” “tortuous,” or “comical” (or whatever other invective one chooses), but I prefer a world where the PTAB performs an independent analysis of the validity of a patent and avoids playing the tempting (and lazy) 325(d) card. Frankly, I am appalled that the PTAB opts to use it 28% of the time it is alleged by the Patent Owner.

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