Analysing âTakings Clauseâ challenges to PTAB reviews
04-05-2021
David Smith / Shutterstock.com
26-09-2016
SCOTUS has refused to review a constitutional challenge to reviews at the Patent Trial and Appeal Board, affirming an earlier decision holding that a patent is not private property. David McCombs, Eugene Goryunov, Jonathan Bowser, and Judy He of Haynes and Boone report.
The US Supreme Court denied
writ of
certiorari in
Christy v US (2021), declining to consider a constitutional challenge under the Fifth Amendment’s “Takings Clause” to Patent Trial and Appeal Board (PTAB) post-grant review proceedings.
This leaves in place decisions by the Court of Appeals for the Federal Circuit as controlling law. Consequently, this article reviews Takings Clause-based constitutional challenges to America Invents Act (AIA) post-grant proceedings.
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On April 11, 2021, the Patent Trial and Appeal Board (PTAB) held
a Boardside Chat webinar to discuss remote hearings in AIA trials
and ex parte appeals. The discussion featured panelists Lead judges
Georgianna Braden and Jessica Kaiser, Deputy Chief Clerk Kulunie
Cannon, and PTAB practitioners David McCombs and Pauline
Pelletier.
The webinar began with a
presentation by Chief Clerk Erica Swift, who discussed the
PTAB s standard procedures for arranging and conducting remote
hearings, as well as recent hearing statistics. Prior to March
2020, less than 1% of AIA trials involved remote presentation by
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On April 11, 2021, the Patent Trial and Appeal Board (PTAB) held a Boardside Chat webinar to discuss remote hearings in AIA trials and ex parte appeals. The discussion featured panelists Lead judges Georgianna Braden and Jessica Kaiser, Deputy Chief Clerk Kulunie Cannon, and PTAB practitioners David McCombs and Pauline Pelletier.
The webinar began with a presentation by Chief Clerk Erica Swift, who discussed the PTAB’s standard procedures for arranging and conducting remote hearings, as well as recent hearing statistics. Prior to March 2020, less than 1% of AIA trials involved remote presentation by counsel, whereas 100% of AIA trials (466 trials) were conducted remotely during the last year. Significantly, the number of hearings has not slowed during this transition. Chief Clerk Swift also noted that the Board received 46 requests for additional argument time under the Legal Experience and Advancement Program (