In a welcome development for defendants implicated in multidistrict litigation (MDL), Kathi Vidal, Director of the U.S. Patent and Trademark Office (USPTO), has established fresh parameters for interpreting the discretionary denial precedent of the Patent Trial and Appeal Board (PTAB) concerning follow-on petitions. Importantly, these new guidelines underscore that defendants involved in MDL can collaborate without forfeiting their individual rights to file separate patent challenges.
Emanating from Vidal’s directive is a newfound sense of ‘peace of mind’ for MDL rivals who, previously, may have been uncertain about the potential implications of collaboration on their right to combat patent claims independently. Prior to this, defendants could have harbored fears of unwittingly undermining their positions in PTAB proceedings by engaging in collective strategies for MDL. The interpretation of PTAB’s discretionary denial precedent meant defendants were left pondering the potential cost on their procedural rights in pursuing joint MDL efforts.
However, the new boundaries established by the USPTO, through Vidal’s actions, clarify this aspect of procedure, effectively sweeping away any lingering confusion. Defendants in MDL can now join forces without jeopardizing their individual capacity to challenge patent claims, thus bringing a semblance of certainty and procedural insight to the often-complex world of multidistrict litigation and patent trials.
For a more detailed elaboration of this emerging development in patent law and multidistrict litigation, consult the comprehensive report by Dani Kass on Law360.