Inter Partes Patent Challenges Are Constitutional, US Supreme Court Rules
But Patent Trial and Appeals Board must issue final written decision on all claims raised by challenger – not just some of them, court says; rulings in two closely watched cases mean that IPR proceedings can continue unabated, but generic drug and biosimilar sponsors may need to rethink how they go about challenging innovator patent claims.
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During oral argument in the Arthrex case, several justices seemed to agree with the Federal Circuit that PTAB judges should have been appointed by the president. They could opt to get around the problem by enabling the PTO director to review all panel decisions.
Proposed rule would eliminate petitioner advantage when patent board is deciding whether to institute inter partes review of patent claims.
In case that could impact challenges of biopharma patents, Supreme Court questioned the consequences of not allowing courts to review PTAB institution decisions when petition may be time barred.