Commenting for IAM on a letter signed by the general counsel and chief IP counsel of 23 companies calling on Commerce Secretary Gina Raimondo to repeal the controversial NHK-Fintiv rule they say is denying them access to inter partes review (IPR) proceedings before the Patent Trial and Appeal Board, Washington, DC principal Nick Matich said that while the letter is unlikely to achieve the authors’ desired outcome, the Secretary “likely has significant influence over a policy decision like eliminating Fintiv.” He continued, “The USPTO Director nominee, Kathi Vidal, committed to Senator Tillis that she would leave Fintiv in place, perhaps with some modifications. It would be politically difficult for Secretary Raimondo to force the acting director to undo Fintiv now or Ms. Vidal to do it later. Either would likely cause a breach of trust with important members of Congress.” Regarding the motivation behind the letter, Matich explained, “Filing an IPR often increases the expense of litigation by requiring the parties to fight in two places and delays the finality. That usually works to the advantage of well-heeled defendants, because dragging out litigation makes it harder for small plaintiffs to enforce their patents and makes patent litigation less likely to be a worthwhile endeavor financially. At a minimum, defendants get two forums for their defenses and the plaintiff has to win in both.” Read the article here.


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