Shook, Hardy & Bacon Seattle Managing Partner Bart Eppenauer offers his thoughts on Cuozzo Speed Technologies v. Lee in an April 24, 2016, IP Watchdog article “Predicting Cuozzo in Advance of SCOTUS Oral Arguments.” Cuozzo provides the U.S. Supreme Court its first chance to evaluate the administrative trial procedures that were created by the implementation of the America Invents Act in 2012.
Eppenauer sets out: “IPRs are becoming the vehicle of choice for challenging a patent’s validity. The volume of IPR petitions far exceeds original expectations when the AIA enacted IPR and other post-grant proceedings.” He predicts, “I believe the Court will agree in large part with Cuozzo and the overwhelming support of the many amici in the case that have set out significant problems and negative long-term consequences to the patent system if the PTO’s current approach of using Broadest Reasonable Interpretation (BRI) in IPRs is not altered.”
Sharing more input, Eppenauer adds, “I also believe the Court will reign in the PTO with regard to its position on reviewability of the PTAB’s institution decisions. A prohibition on judicial review in this context arguably would allow a U.S. government agency to exceed its explicit statutory authority granted by Congress.”