Interim Procedure for Discretionary Denials Established, PTAB Litigation Blog

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On June 21, USPTO Director Kathi Vidal issued a memorandum concerning the PTAB’s practice of determining whether to institute an AIA post-grant proceeding in view of the Fintiv factors.  The memorandum is in part a result of feedback received from a request for comments on the PTAB’s current approaches to exercising its discretion to deny institution.  While the Office anticipates exploring the possibility of making rules through the formal rulemaking process, the memorandum establishes an interim procedure for Fintiv factor application and clarifies certain aspects of the PTAB’s current practices.

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