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Law360: As Attys Sharpen PTAB Strategies, Fintiv Denials Are Falling

October 27, 2021

The Patent Trial and Appeal Board’s (PTAB) rate of denial for patent reviews under the precedential Fintiv decision has declined over the past six months, which signifies the Board giving less weight to trial dates in parallel infringement litigation and petitioners becoming comfortable with stipulations, according to many attorneys. O’Melveny partner and former vice chief administrative PTAB judge Tim Fink said that Fintiv denials are down substantially for a  number of reasons. “The most significant [reason is] that petitioners have adapted to Fintiv by filing petitions much earlier after being served with a complaint, and the board [is] noting this and crediting petitioner diligence,” Fink said. He mentioned the stipulation in the Sotera case that was designated precedential to “put a pretty heavy thumb on the scale of not denying institution because of an earlier trial date.” He said that even when parallel district litigation has brought in rocket dockets, petitioners are accustoming themselves to prior art stipulations to avoid denials. “There are some district courts where no matter how fast you file an IPR, you’re going to get a much earlier trial date. And the Sotera stipulation has been effective at getting institution even in those cases,” Fink said.

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