WIPR survey: PTAB process is not too challenger-friendly

The Patent Trial and Appeal Board’s (PTAB) inter partes review (IPR) process is not too friendly to parties challenging registered US patents, WIPR readers have claimed.

Readers were unanimous in their support for the argument that the PTAB is not biased against patent owners.

Last week, we asked whether the PTAB is too friendly to patent challengers in the wake of the US Court of Appeals for the Federal Circuit’s decision that the IPR process is constitutional.

The IPR process was challenged by MCM Portfolio on the grounds that it was unconstitutional. Last year, the PTAB invalidated the company’s patent covering the connection of a computer to a flash storage system after a HP challenged it on the grounds that it was obvious.

MCM Portfolio had argued that the IPR process was illegal on the basis that it violated its right to a jury trial in civil cases (Seventh Amendment). But the federal circuit dismissed the claim, concluding that the IPR was constitutional.

The PTAB has also come under scrutiny following a number of IPR petitions filed by hedge fund manager Kyle Bass and the Coalition for Affordable Drugs.

Bass has succeeded in persuading the PTAB to institute an IPR trial against patents owned by Celgene, Shire and NPS Pharmaceuticals patents, despite accusations of abusing the process.

For this week’s survey, we ask: “Several leading tobacco companies are challenging plain packaging laws in England, which are due to go into effect next year. Are you in favour of, or opposed, to plain packaging? Please tell us the most compelling argument either for or against such legislation.”