Exercising discretion [Intellectual Property Magazine]

Keri Schaubert and Aaron Lukas consider a precedential PTAB order outlining six factors in exercising discretion to deny institution of IPR proceedings. On May 5, 2020, the US Patent Trial and Appeal Board (PTAB) designated as precedential its order in Apple Inc v Fintiv Inc. This order outlines six factors that the PTAB will consider in exercising discretion under 35 USC section 314(a) to deny institution due to an earlier trial date in a parallel proceeding. Under section 314(a), the PTAB has the authority to deny institution of a requested proceeding on the basis of certain non-dispositive factors, including due to the advanced state of a parallel district court litigation. 

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Aaron Lukas, Ph.D.

Co-Chair, Hatch-Waxman & Biologics


(202) 912-4823

Keri L. Schaubert, Ph.D.



(212) 883-2258

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