Vidal says discretionary denials do not condemn serial petitions

By Dani Kass (August 23, 2022, 9:42 p.m. EDT) — When the Patent Trial and Appeal Board uses its discretion to deny a patent challenge, future challenges to the same patent should not be automatically refused, particularly if the merits have not been assessed, said Kathi Vidal, director of the United States Patent and Trademark Office, on Tuesday.

Vidal criticized a PTAB panel’s interpretation of his General Plastic precedent, which sets out the factors in deciding when to allow multiple motions challenging the same patent. Here, she said Bright Data Ltd.’s past patent challenges, which were discretionarily denied without discussing the merits, do not justify blocking a series of challenges brought by a group of Lithuanian companies. ..

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