PTAB: Vidal Refocuses Guidance on Fintiv Factors and Discretionary Denials
Highlights
For institution decisions, Fintiv factors must be considered prior to assessment of the “compelling merits” standard
Some analysis beyond the “reasonable likelihood” standard is required in assessing the “compelling merits”
Director review will likely continue to serve a guidance role for some time
Kathi Vidal, director of the U.S. Patent and Trademark Office (USPTO), issued an opinion in late February vacating and remanding the Patent Trial and Appeal Board’s (PTAB) Institution Decision concerning treatment of Fintiv issues in Commscope Technologies LLC v. Dali Wireless, Inc., IPR2022-01242. Vidal initiated a Director Review of the panel’s decision sua sponte, reflecting her intent to continue to provide governing influence on a range of PTAB issues.
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