Rescission of Vidal Memo: PTAB Returns to Fintiv Standards on Discretionary Denials

The Patent Trial and Appeal Board (PTAB) is witnessing a notable shift in its approach to discretionary denials following the U.S. Patent and Trademark Office’s recent rescission of the 2022 Vidal memorandum. This change marks a return to the standards established under the Apple v. Fintiv ruling. Legal professionals indicate that petitioners should now carry out a comprehensive assessment of all Fintiv factors. This holistic approach is necessary as reliance on certain fail-safe provisions may no longer suffice. As practitioners navigate these changes, a strategic reassessment of their filings appears essential.