PTAB Permanently Altered By Fintiv, Even As Denials Plummet

The number of cases in which Patent Trial and Appeal Board judges have used their discretion to deny reviews dropped dramatically after the U.S. Patent and Trademark Office director released new limitations. The number of denials under Section 314(a) of the Patent Act — largely based on the status of parallel litigation in precedent called Fintiv — dropped to just one over the third quarter of 2022, down from 60 over the first quarter of 2021, when the director who spearheaded those denials left.

Scott Weidenfeller told Law360, "I thought it would trend downward, but I'm not sure I thought it would get quite this low." Scott continued, stating "I figured it would take a little bit longer for parties to react to the [guidance]. I thought there would be continuing Fintiv denials for a while, but they seem to have dropped off really quickly."

"Parties should be able to know when Fintiv is going to be a problem and when it's not," Scott said. "It shouldn't be a problem every time you file a petition."

In addition, Scott stated, "It's probably a permanent change. Fintiv hasn't gone away entirely, but there's a way to avoid it. It is a real significant decision to make — whether to make such a stipulation."

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