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Thomas King is an attorney with Haynes and Boone in Irvine, California, where his practice focuses on patent litigation and inter partes review proceedings. He can be reached at email@example.com. Jeffrey A. Wolfson is a partner with Haynes and Boone in Washington, D.C. His practice focuses on patent and trade secret law, including chemical and pharmaceutical patents, USPTO proceedings, and strategic client patent counseling and opinions. He can be reached at firstname.lastname@example.org.
It has been nearly a year since the Patent Trial and Appeal Board (PTAB) began directly accepting petitions from third parties to review and invalidate patents. Since that time, over 300 petitions for review have been filed, mostly for patents that are being asserted in concurrent district court litigation. The entrance of PTAB review marks a major change in the interplay of patent rights and U.S. patent litigation—one that could have a dramatic impact in the years to come.
Because PTAB review is so new, there are many fundamental questions that remain to be answered, including issues that overlap with traditional district court litigation. Nevertheless, over the last year, a variety of district court, Federal Circuit, and PTAB decisions have clarified various open issues and provided many insights on how PTAB review operates in practice. Understanding PTAB review will be critical for all parties enmeshed in patent litigation. This article attempts to address many of the open questions about PTAB review that still remain.