PTAB Requests Comments Regarding Discretionary Institution Issues, PTAB Litigation Blog

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The Supreme Court has held the PTAB’s “decision to deny a petition is a matter committed to the Patent Office’s discretion,” and that there is “no mandate to institute review.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016).  Since the Court’s confirmation of the PTAB’s discretion to deny institution, how the PTAB wields that discretion under §§ 314(a), 325(d) has been a hot button issue at the Board.  In just the last 24 months, the PTAB has designated ten § 314(a) decisions (5 precedential, 5 informative), and four § 325(d) opinions (3 precedential, 1 informative).

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