Fed. Cir. Directs Dismissal of Ex Parte Reexam, PTAB Litigation Blog
On September 29, 2021, the Federal Circuit in In re: Vivint, Inc. (Fed. Cir. 2021) held that 35 U.S.C. § 325(d) applies to both inter partes review (IPR) petitions and requests for ex parte reexamination. Accordingly, the Federal Circuit found that “the Patent Office, when applying § 325(d), cannot deny institution of [an] IPR based on abusive filing practices [and] then grant a nearly identical reexamination request that is even more abusive.” However, the Federal Circuit explicitly stated that it was “not holding that the Director may never launch a reexamination even when a particular challenger has engaged in improper serial filing.”
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