PTAB'S 'Death Squad' Label Not Totally Off-Base, Chief Says - Law360
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`PTAB's 'Death Squad' Label Not Totally Off-Base,
`Chief Says
`
`Bv Rvan Davis
`
`Law360, New York (August 14,2014,5:47 PM EDT) -- The Patent Trial and Appeal Board's reputation as a
`"death squad" for patents is "unfortunate language," but in some ways it adequately describes the mission
`Congress gave the board under the America Invents Act, its chiefjudge said at a meeting Thursday.
`PTAB Chief Judge James Smith told a meeting of the U.S. Patent and Trademark Office's Patent Public
`Advisory Committee that while the label has been used by critics of the board concerned about the rate at which
`it is reviewing and invalidatirrg patents under the AIA programs, there may be some truth to it.
`
`"The purpose of the proceedings is to identify some limited number of patents and claims that are unpatentable
`and make sure the claims are removed," he said. "If we were4't, in part, doing some 'death squadding,'we would
`not be doing what the statute calls on us to do."
`
`He stressed that the board certainly does not summarily review or invalidate every patent that comes before it,
`but carefully evaluates each case,
`
`"The question is, are we hearing each case independently and deciding with no bias what the right answer is
`based on the evidence presented," he said. "That is always what we intended to do and the only tlring we lrave
`done since the proceedings began,"
`
`The "death squad" labelhas stuck to the board since it was used by former Federal Circuit Chief Judge Randall
`Rader in a speech last year, where he said the patent office was in tension with itselfl with thousand of
`examiners "giving birth" to patents and hundreds ofjudges on the PTAB "acting as death squads, kind of killing
`property rights."
`
`Judge Smith said Thursday that the term was "unfortunate language because it is not very probative as to what is
`going on."
`
`"As I have thought about it more, maybe death squads isn't as pejorative as it may have been meant," he said,
`"Clearly, the statistics show not every claim in a patent brought forward to the board has met its death because it
`has been raised in a petition."
`https://www.law360. com/articles/567550/ptab-s-death-squad-label-not-totally-off-base-chief-says
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`MYLAN PHARMACEUTICALS V. ALLERGAN
`IPR2016-01127, -01128, -01129, -01130, -01131 & -01132
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`PTAB's 'Death Squad' Label Not Totally Off-Base, Chief Says - Law360
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`The rate at which the board has instituted reviews of patents challenged under the AIA programs has been in
`decline over the past year, possibly because some of the weakest patents were challenged soon after the
`programs began, Judge Smith said.
`
`In fiscal20l3, the board instituted 167 reviews and denied 26 petitions challenging patents, thus reviewing
`patents a rate of 87 percent, he said. In fiscal 2013, with many more petitions filed, 449 trials have been
`instituted and 149 have been denied, arate of76 percent.
`
`The AIA review programs have been considerably more popular than the USPTO had anticipated. In June, the
`board received a "astronomical high" of 190 new petitions, Judge Smith said, although that dropped to just over
`120 in July.
`
`"At one time, the thought was, would we ever top 100" petitions in a month, he said. "Now. our prayer is that we
`go a little while longer before [we] hit 200."
`
`--Editing by Emily Kokoll
`
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`https://www.law360.com/articles/567550/ptab-s-death-squadlabel-not-tolally-off-base-chief-says
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`315
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`ALL 2108
`MYLAN PHARMACEUTICALS V. ALLERGAN
`IPR2016-01127, -01128, -01129, -01130, -01131 & -01132
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