Patent Owner Finds The "Achilles Heel" In Petitioner’s Invalidity Theory, PTAB Litigation Blog

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Like utility patents, design patent validity can be challenged in inter partes review ("IPR") proceedings. Nonetheless, the Patent Trial and Appeal Board ("PTAB" or the "Board") tends to reach different results in design patent IPRs than in IPRs involving their utility cousins. Before June 2018, the PTAB had instituted design patent IPR proceedings at a much lower rate, around 40%, and only 4 of 14 challenged design patents had survived IPR scrutiny. But on June 28, 2018, two more design patents survived AIA trials when the PTAB issued two post-trial decisions upholding the validity of two challenged Nike design patents covering partial shoe sole designs.

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