The PTAB: The Patent Game Changer

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Presentation transcript:

The PTAB: The Patent Game Changer

Sovereign Immunity Flows from the 11th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Generally invoked by states or state agents/instrumentalities (e.g., universities) Closely related doctrine of tribal immunity

Sovereign Immunity in the PTAB Sovereign immunity applies to both Article III court proceedings and agency proceedings that “walk, talk, and squawk very much like a lawsuit.” Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) The PTAB has typically extended sovereign immunity to state university owned patents. E.g., Reactive Surfaces Ltd. v. Toyota Motor Co., IPR No. 2017-572, Paper No. 32 (July 13, 2017) But what about tribal immunity?

PTAB and District Court Strategies Patent Owners: protecting your IP from multiple petitions, especially late in one-year window Petitioners/Defendants: timing your petitions; filing multiple petitions See General Plastic Industrial Co. v. Canon Kabushiki Kaisha, IPR No. 2016-1357, Paper No. 19 (Sept. 6, 2017) (designated “informative”)

Willfulness Strategies Post-Halo Knowledge of patent sufficient to plead willfulness. E.g., Blitzsafe Texas LLC v. Volkswagen, 2:15-cv-1278 (JRG/RSP), Dkt No. 24 (E.D. Tex. Aug. 19, 2016) But some courts require “egregiousness” to plead willfulness. E.g., Varian Med. Sys., Inc. v. Elekta AB, 15-cv-871 (LPS/CJB) (D. Del. July 12, 2016)