Harness Dickey patent litigator Matt Cutler was quoted in an article that appeared yesterday in Law360 discussing key insights after five years of the Patent Trial and Appeal Board. Today, in the second part of that series, Cutler offers his thoughts on the future of the PTAB.
Most prominently, the upcoming Supreme Court Oil States v. Greene’s Energy trial is expected to reshape the patent system by deciding whether Inter Partes Reviews violate the U.S. Constitution. While Cutler suggests that it is unlikely that the decision will unravel the entire America Invents Act trial system, he does expect that SCOTUS will help define a new path forward for the Board.
In a more recent matter from the Federal Circuit, Nidec v. Broad Motors, many are considering the decision to be a kind of warning to the PTAB. If the Board does not begin to play by the rules, Cutler says he could “almost guarantee you’re going to see the Federal Circuit come down on them pretty hard sometime in the near future.”