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JP Morgan moved to stay the patent litigation brought against it by IV based on its representation that it intended to file petitions seeking covered business method patent reviews of four of the five patents-in-suit.  The district court denied JP Morgan’s motion to stay stating that it believed that the litigation would likely be resolved before any of the CBMRs are resolved.  JP Morgan filed an interlocutory appeal of the district court’s denial of its motion to stay.  The Federal Circuit affirmed, holding that the meaning of Section 18(b) of the AIA is that a CBMR proceeding does not begin until the PTAB institutes a review in response to the petition, not when the petition itself is actually filed.  Under Section 18(b), a party may take an immediate interlocutory appeal from a district court’s decision as to whether enter a stay “relating to a [CBMR] proceeding for that patent.”  Accordingly, because JP Morgan filed its appeal before the PTAB instituted any of the CBMRs filed by JP Morgan (it ultimately filed only two and only one was ultimately instituted), the Federal Circuit lacked jurisdiction of JP Morgan’s appeal.  Judge Hughes dissented, arguing that the majority’s conclusion relies on an overly narrow reading of the statute and is at odds with the purpose of the AIA and the CBMR procedure.

Intellectual Ventures II LLC v. JP Morgan Chase & Co., Case No. 2014-1724 (April 1, 2015); Opinion by: O’Malley, joined by Bryson; dissent by Hughes; Appealed From: District Court for the Southern District of New York, Hellerstein, J. Read the full opinion here.

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