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There Is No Exception From Arthrex For Ex Parte Proceedings

By John Isacson on July 7, 2020
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In re Boloro Global Ltd., Appeal Nos. 2019-2349, -2351 and -2353 (Fed. Cir., July 7, 2020).

Boloro appealed to the PTAB final rejections in three patent applications, which the PTAB ultimately affirmed. On appeal of the PTAB decisions to the Federal Circuit, Boloro moved to vacate the PTAB decisions and remand the appeals to different panels of the PTAB.

The Director opposed the motions to vacate and remand on the grounds that the Director “possesses ‘complete control over initial examination’ and could at any time prior to the Board proceedings have directed the issuance of Boloro’s patents but did not, consistent with the Board’s subsequent decisions.” Slip op. at 2-3. The Federal Circuit was not persuaded and granted Boloro’s motions. The court noted that the Director conceded that the APJ’s appointed were unconstitutional, and thus the was no basis to depart from the general rule. Accordingly, no matter the type of proceeding, any PTAB decision issued before Arthrex and under appeal is subject to vacatur and remand.

Photo of John Isacson John Isacson

A registered patent attorney, John has particular experience in strategic counseling and patent portfolio management, infringement litigation, due diligence, inter partes and post-grant reviews, reexaminations, patent interferences, inventorship and ownership disputes, biosimilars, and Hatch-Waxman. He is regularly involved in litigation and U.S. Patent…

A registered patent attorney, John has particular experience in strategic counseling and patent portfolio management, infringement litigation, due diligence, inter partes and post-grant reviews, reexaminations, patent interferences, inventorship and ownership disputes, biosimilars, and Hatch-Waxman. He is regularly involved in litigation and U.S. Patent and Trademark Office proceedings. John also advises on related FDA matters for certain technologies.

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  • Posted in:
    Intellectual Property
  • Blog:
    PostGrant-Counsel Blog
  • Organization:
    Troutman Pepper Locke

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