PublishedSeptember 1, 2020

Apple, Cisco, Google, and Intel Challenge USPTO Rule Reducing Access to IPR

Washington — Four major American technology companies filed a challenge to the so-called NHK-Fintiv rule under the Administrative Procedure Act Monday.  The rule, which permits the U.S. Patent and Trademark Office to refuse to reexamine a patent if the patent might be part of a trial in the near future, has increasingly been used by the PTO to deny inter partes review (IPR) petitions.  

The companies argue that the rule contradicts both the text of the America Invents Act (AIA), which gives companies one year after they are sued to file an IPR, as well as Congress’s intent in enacting the AIA as a way for the Office to review and eliminate invalid patents after issuance.

The following can be attributed to CCIA patent counsel Josh Landau:

“The Patent Office has used the NHK-Fintiv rule challenged by Apple, Cisco, Google, and Intel to deny challenges to invalid patents, allowing an increasing number of invalid patents to remain in force.  That rule is completely contrary to Congress’s intent in its legislation to curb patent misuse.  CCIA fully supports the effort to eliminate the NHK-Fintiv rule and restore the role of inter partes review as an efficient and accurate proceeding for invalidating patents that never should have been issued in the first place.”

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