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Hi. This is legally incorrect. All inter partes review decisions are subject to judicial review by the Federal Circuit. The standard applied by the Courts is
by pkilgore 9y ago
Hi. This is legally incorrect.
All inter partes review decisions are subject to judicial review by the Federal Circuit. The standard applied by the Courts is called "substantial evidence." To dumb down the standard (it is only slightly higher than this): The board cannot simply make shit up on the way to its decision.
Your hypothetical would probably fail under even more deferential standards of review. God fucking knows it would not survive the Federal Circuit--I'm happy to link plenty of cases where they told the board that its invalidity decision was not supported by substantial evidence.
- perpetualpatzer 9y agoYes, sorry. My goal was to lay out the parade of horribles on the other side of the case to illustrate why the question was being asked at all. You're right that IPR is judicially reviewable and I'd agree that my example would probably not hold up to review if clearly politically motivated and contrary to evidence. Someone who's worried about this might argue with you that to have a patent invalidated, then the invalidation subsequently overturned is not the same thing as not having a patent invalidated in the first place, if only in the eyes of the market. I don't think it's a meritless argument, though it's not one that sways me personally.
- pkilgore 9y agoFair enough. You'd be surprised how well this stuff is priced in on the merits. Plenty of ex IP attorneys like me working in and for financial institutions evaluating these petitions. Not all patents are good. Not all are bad. But do this long enough you can decently handicap arguments, especially in IPRs where all the petitioners' evidence theoretically on the table from the start.