Whether a non-identified party is a real party-in-interest to a proceeding is a highly fact-dependent question. Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,759 (Aug. 14, 2012) (“Trial Practice Guide”) (citing Taylor v. Sturgell, 553 U.S. 880 (2008)). “A common consideration is whether the non-party exercised or could have exercised control over a party’s participation in a proceeding.” Trial Practice Guide, 77 Fed. Reg. at 48,759 (citing Taylor, 553 U.S. at 895).
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Real Party in Interest – A Strategy For Attacking IPR Petitions.
Recent statistics suggest that approximately two thirds of claims challenged in IPR proceedings are held to be invalid by the PTAB. For PTAB trials instituted on petitions filed in Art Unit 1600 at the U.S. Patent and Trademark Office, which examines patent applications in the biotechnology and pharmaceutical arts, 100% of the final decisions rendered in the first two years of IPRs resulted at least one of the challenged claims being cancelled. For patent owners, avoiding IPR institution can be critical.
Continue Reading Real Party in Interest – A Strategy For Attacking IPR Petitions.