On November 2, Senator Thom Tillis—the ranking member of the Senate Judiciary Committee’s Subcommittee on Intellectual Property—sent a letter to acting PTO Director Andrew Hirshfeld expressing concern about the PTAB’s use of “unrealistic” trial schedules to guide institution denials under Apple v. Fintiv. We recently reported our own analysis concluding that approximately 94% of the trial dates the Board relied upon in Fintiv denials issued between May and October 2020 later proved to be inaccurate.
Senator Tillis explained that he “support[s] the policies underlying Fintiv” but nonetheless believes “that the PTAB’s historical practice of crediting unrealistic trial schedules” under Fintiv Factor Two has “created harmful incentives for forum shopping and inappropriate judicial behavior.”
He specifically cited the Waco Division of the Western District of Texas, noting that trial dates there often “prove to be not just unrealistic, but they [are] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom.” The Senator noted that the Federal Circuit “has cast grave doubt” on those trial dates in many of its recent mandamus rulings.
Under the circumstances, Senator Tillis asked the agency to review Fintiv and implement “appropriate reforms” by the end of 2021.