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Jones Day’s Fintiv-ITC Developments Tracker, PTAB Litigation Blog

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Although first briefly mentioned as a possibility in theAugust 2018 Trial Practice Guide Update(page 10), outside of one instance (Bio-Rad Labs. v. 10X Genomics, IPR2019-00567; -00568, August 8, 2019), PTAB discretionary institution denials under 35 U.S.C. § 314(a) based on ITC proceedings were a non-occurrence.  But the expanded discussion of ITC-relevance in theFintiv precedential decision(pages 8-9) has brought on a flurry of Patent Owner Preliminary Response arguments against institution based on parallel ITC matters.  And since mid-October 2020, many of those Patent Owner arguments have been successful in getting institution denied.

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