The ITC Should Defer to the PTAB on Patentability

The ITC Should Defer to the PTAB on Patentability

Introduction

There is a growing trend to litigate patents in administrative proceedings instead of federal district courts.[1] While district court litigation is often lengthy and expensive to resolve an entire case, administrative forums can offer answers on the determinative issue of patentability more efficiently.[2] Although this shift in strategy affords some procedural and economic benefits to patent litigators, the dueling interplay between the Patent Trial and Appeal Board (PTAB) and the International Trade Commission (ITC) creates significant confusion and uncertainty for consumers and businesses.[3]

Patent law seeks a balance between promoting innovation and fostering competition.[4] The public has a strong interest in determining patent validity.[5] For instance, the public has an interest in encouraging inventors to create and disclose new technologies and in a competitive market that produces better products at lower prices.[6]

Two distinct agencies handle patent validity challenges: the PTAB and the ITC. At the PTAB, accused infringers can challenge patent validity through an inter partes review (IPR).[7] IPRs provide an administrative ruling on the validity of the at-issue patent.[8] At the ITC, patent owners can seek a nationwide injunction against an infringing patent.[9] When determining if an injunction is warranted, the ITC also frequently makes a determination on patent validity.[10] The main differences between these two avenues are (1) the average timeline (18 months for the ITC and 2 years for an IPR) and (2) the invalidity standard of proof (clear and convincing evidence for the ITC and preponderance of the evidence for an IPR).[11]

While these two administrative agencies often operate independently and without overlap, they sometimes issue conflicting rulings on whether an asserted patent is valid. For example, the PTAB can determine that the asserted patent is invalid but that determination is not binding on patent validity decisions made by the ITC.[12] This can lead to cases where the agency tasked with granting patent rights in the first place says a patent is unenforceable and subsequently another agency enforces that patent anyway.[13]

To address this problem, I argue that the ITC should defer to PTAB determinations of patent validity. The ITC already defers to district court determinations of validity and IPRs are widely considered an alternative to district court decisions.[14] The ITC should treat IPRs how it treats district courts: respectfully.

Background

Patents are limited monopolies over inventions.[15] When a patent is issued, it allows the owner to exclude others from using their invention.[16] To be valid, the patented invention must be novel,[17] nonobvious,[18] and useful.[19] In other words, a valid patent only claims an invention that has not been invented before, not an invention that is so obvious or useless it would be unfair to grant a limited monopoly. When a patent application is submitted to the Patent and Trademark Office (PTO), a technically trained patent examiner researches the invention to verify that it meets these requirements.[20] This involves reviewing “prior art” like other patent applications and research publications to make sure the invention really is novel and nonobvious.[21] On average, the examiner spends about 19 hours on research for each patent application.[22] If an application is sufficient, the patent registers. Upon registration, owners have the right to exclude others from using their claimed inventions for twenty years from the filing date.[23]

It is the responsibility of patent owners to enforce their own rights.[24] Patent owners frequently assert their rights by seeking monetary damages in district court and/or injunctive remedies at the ITC. Accused infringers are increasingly fighting back by challenging the validity of these asserted patents at the PTAB.[25]

Consider the following example: you own a patent claiming an invention for a widget and your competitor begins producing very similar products which you suspect infringe your patent. You could file in a federal district court and ask for damages and an injunction, but this is expensive, time-consuming, and risky. According to a 2019 industry survey, the median patent litigation cost through post-trial was $700,00 to $4 million.[26] The median case would take 2.4 years to proceed to trial, at which point you could lose everything, even your patent rights.[27] This is a real possibility because your competitor will likely defend by asserting patent validity.[28] This defense requires showing, often through extensive expert testimony, that your invention actually was not novel or nonobvious at the time you invented it.[29] If the factfinder agrees that you never should have been granted a patent in the first place, perhaps because prior art exists or you made a mistake during the application process, you will lose both the case and your patent rights.[30]

Alternatively, you could file a suit at the ITC, an administrative board founded in the 1930s as a protectionist government agency designed to safeguard domestic industries.[31] But while the ITC is generally very patent-friendly, it can only grant injunctive relief, not monetary relief.[32] The ITC’s protectionist focus is evident in its remedies, which are either in the form of an exclusion order (preventing products from being shipped across the border) or a cease and desist order (preventing infringing products from being imported and destroying current infringing inventory in the country).[33] ITC judges generally do not have a technical background, which can be useful in evaluating the credibility of experts and the technical substance of the dispute.[34]

Some advantages of the ITC over the district court are its speed and scope. While a district court case can take years, the ITC has a statutory mandate to conclude at the “earliest practicable time,” with investigations usually concluding within a year.[35] And while district court cases could involve tangential patent issues of licenses, contracts, infringement, employment, trade secrets, and so on, the ITC is solely concerned with the importation of infringing.[36] As a result, ITC cases can be significantly less expensive.[37] Even though the ITC cannot grant monetary damages for infringement, its injunctive remedies can effectively shut down an infringer’s business.[38] If the competitor manufactures infringing product overseas and then sells them stateside, an ITC injunction would completely disrupt this revenue stream. Even if a patent owner loses at the ITC, they can still attempt to enforce their patent at the district court because the district court owes no deference to the ITC’s determination.[39] Thus, ITC proceedings are very patent-friendly because they offer a relatively large reward (a nationwide injunction against your competitor) with low risk (speedy proceedings with a non-final determination on patent validity).[40]

Whether you enforce your patent at the district court or at the ITC, your competitor may respond by initiating a new administrative proceeding at the PTAB solely focused on patent validity.[41] The most common PTAB proceeding is an IPR, where a third party petitions the PTAB to review your granted patent registration and determine if it is actually invalid.[42] IPR proceedings have a reputation for being a “patent death squad”; in the first few years after IPRs were created, IPRs invalidated the vast majority of patents that came before it.[43] IPRs only consider whether a patent is invalid based on prior patents and printed publications, which are only a handful of the many ways that a patent registration could be invalidated.[44] While there is a significant upfront cost to file an IPR petition, the overall costs are lower than at either the district court or ITC because the entire process consists of a petition, a reply brief, and an oral hearing.[45] As a result, IPRs are not patent-friendly.

Both the ITC and the PTAB address questions of patent validity, but they have polarizing differences. ITC investigations usually conclude within 18 months of filing, while IPRs take approximately 2 years.[46] IPRs are reviewed by a panel of judges with technical backgrounds, unlike the ITC.[47] The ITC is more likely to uphold a patent than the PTAB, but it is also more likely to be overturned on appeal.[48] IPRs consider patent validity evidence on a preponderance standard whereas the ITC evaluates it on substantial likelihood standard.[49] For a patent owner, the risk of losing at the ITC pales in comparison to losing at the PTAB, where an invalidity determination would initiate the patent cancellation process.[50] Thus, these differences incentivize patent owners to pit two administrative agencies against each other.

Background Law

With the rise of these administrative proceedings in the last decade,[51] a patent’s validity can be litigated simultaneously in multiple forums. The most common occurrence is the following: (1) a patent owner sues an infringer in district court, (2) shortly after, the infringer challenges the patent’s validity in an IPR, and (3) the patent owner subsequently petitions the ITC for injunctive relief.[52] Depending on when IPR and ITC petitions are filed, it is possible for the PTAB to issue a ruling on patent validity before the ITC does.[53] There is no uniform policy of granting deference to PTAB validity rulings.[54]

The ITC rationalizes this procedural deficiency where a patent may simultaneously be rendered valid and invalid by holding that even after a PTAB determination of invalidity, a patent is technically still valid until the PTO revokes the registration certificate.[55] And, because the ITC is statutorily mandated to conclude its proceedings at “the earliest practicable time,” the ITC does not stay its proceedings pending an appeal of an IPR decision.[56] It has only issued stays of its investigations in a small handful of cases, usually when the ITC proceedings are in very early stages.[57]

When the ITC ignores PTAB decisions on validity, the ITC sometimes issues harsh injunctive remedies for patents that are later invalidated by the Federal Circuit. For example, in Arista Networks, Inc. v. Cisco Systems, the ITC denied a stay when the asserted claims were invalidated by an IPR because the patent remained technically valid pending appeal.[58] The ITC enjoined the “infringer” for ten months before the Federal Circuit summarily affirmed the PTAB’s decision that the patent was not valid.[59] Even then, the patent “infringer” had to petition the ITC to lift its injunction.[60] Even though the patent owner told the ITC that it was not going to petition the U.S. Supreme Court for certiorari, the ITC waited until the patent owner’s deadline to petition the U.S. Supreme Court had expired.[61] Similarly, in Nobel Biocare Services AG v. Instradent USA, Inc., the ITC enforced a PTAB-invalidated patent for 16 months before the Federal Circuit summarily affirmed the PTAB’s decision.[62]

Argument

When the ITC enforces invalid patents, it violates its statutory mandate to enforce “valid” patents, wastes resources, confuses consumers, and irreparably harms businesses. To avoid this, the ITC should defer to PTAB determinations of invalidity.

The ITC has long respected district court patent invalidations, even when those decisions are pending appeal. The ITC previously modified an exclusion order at the last moment before enacting an injunction once it learned of a district court invalidity decision, even though that decision was pending appeal.[63] This type of external invalidity ruling “occurred subsequent to the [International Trade] Commission’s issuance of the remedial orders and has substantially changed the circumstances under which the orders were issued.”[64] This is because “[t]he Commission cannot assume a passive role once an exclusion order is issued,” as it must “always [be] concerned with the impact of its orders on the United States economy and consumers as well as its obligation to terminate orders.”[65]

The ITC should extend the same respect to the PTAB’s invalidation of patents that it offers to district court determinations of patent invalidity. It has done so in a few tentative cases, but its reasoning in such cases was problematic. For example, in Three-Dimensional, the ITC deferred to a PTAB finding that some of the asserted claims were invalid, but the ITC still issued an injunction based on other claims not before the PTAB. The ITC recognized the PTAB’s finding of some of the claims as invalid but ultimately enforced an injunction based on the upheld claims. Because the PTAB’s finding had “no practical effect” on the ITC’s decision, any deference given to the PTAB was gratuitous.[66]

The ITC is reluctant to defer to the PTAB, yet it acknowledges that “Congress intended the IPR procedure be an alternative to district court litigation and . . . the Commission does not issue enforceable remedial relief for claims held invalid by a district court[.]”[67] Because IPRs are an alternative to district court litigation, and the ITC defers to district court decisions of validity, the ITC should therefore grant that same level of deference to IPR validity determinations.      The ITC should defer to PTAB validity determinations because of the differing statutory mandates and technical skills of the two administrative bodies. The ITC is focused on trade disputes and protecting American innovation, while the PTAB is focused on upholding the integrity of the patent system.[68] The PTAB is staffed by a panel of three judges with scientific backgrounds who are more experienced with the technical nuances of patent laws than the generalist judges on the ITC.[69] Each of the PTAB judges have technical backgrounds and the PTAB only answers questions of whether a patent is valid.[70] In contrast, ITC judges are not necessarily technically trained and address questions such as patent validity, infringement, and jurisdiction.[71] The PTAB is better equipped—as a matter of both operation and personnel—to determine patent validity.

Giving proper weight to IPR decisions helps the ITC fulfill its statutory requirements with a sense of urgency, by concluding investigations immediately once a contested patent is invalidated. This supports the ITC’s goal of efficiency while maximizing certainty. Indeed, the PTO itself “presumed litigation would not proceed if the PTAB issued a [final written decision] of invalidity.”[72] After all, an invalid patent cannot be enforced.

The ITC should give proper weight to the PTAB’s determination because it is all but certain to be affirmed. Similar PTAB invalidity decisions are affirmed on every issue nearly 80% of the time and on at least one issue nearly 90% of the time, usually without opinion.[73] This is because the Federal Circuit defers to the PTAB’s factual findings unless unsupported by substantial evidence.[74] When the ITC has the benefit of a thorough analysis conducted by technically-trained PTAB judges, it can rely on their findings to fulfill its Congressional mandate of enforcing valid patents. Soldiering on in spite of a PTAB determination “would be an inefficient and improper use of scarce Commission resources, and of the resources of the parties,” because the PTAB decision will likely be upheld and overturn the ITC decision.[75]

The ITC’s reasoning for overlooking PTAB determinations hangs on a technicality: that a patent is technically valid until the PTO Director himself rips the certificate in two. But “if this was a valid rationale for not staying the proceedings, then proceedings at the Commission would never be stayed.”[76] In the small minority of cases where the Federal Circuit overturns the PTAB’s invalidity decision, the patent owner is able to fully recover for any harm they may endure in the interim. But an alleged infringer has no way of recovering from an inappropriate exclusion order.

Ignoring precedent and equity would also unnecessarily harm the public. The ITC would unnecessarily create confusion and uncertainty by overlooking PTAB invalidity decisions. In Nobel Biocare, the ITC continued to enforce a patent in the face of a PTAB invalidation. By the time the PTAB decision was affirmed, the ITC had stringently enforced an invalid patent for over sixteen months.[77] Similarly, in Arista Networks, the ITC’s delay in rescinding an exclusion order after a PTAB invalidity ruling resulted in ten months of injunctive relief for invalid patent claims.[78] By overlooking the PTAB, the ITC needlessly confused American consumers and businesses by enforcing an invalid patent, thereby violating the public’s twin interests in encouraging innovation and free competition.

The public has no interest in penalizing a U.S. company for using an invalid patent claim. It is not “in any party’s interest or in the public interest to continue an investigation which is ultimately found to be based on an invalid or non-existent patent.”[79] The Supreme Court has recognized the public’s “strong” interest “in resolving validity questions.”[80] The ITC’s remedial orders are meant to deter future violations of intellectual property.[81] The ITC fails to deter future violations when it wrongly enforces invalid patents. The ITC’s punitive remedies cannot deter future wrongdoing if it is conflicting with the greatest authority on patents, the PTO.[82]

ITC enforcement of an invalid patent “is conduct offensive to public policy.”[83] This is because “[t]here is a stronger public interest in the elimination of invalid patents than in the affirmation of a patent as valid.”[84] The ITC has a Congressional mandate to conclude its investigations “at the earliest practicable time,” while also meeting exacting standards. By giving appropriate weight to PTAB decisions—in the limited circumstances when they occur—the ITC can further its mission with speed and accuracy.

Conclusion

The PTAB is in the best position to determine patent validity and—in the rare circumstances where the PTAB issues a decision before the ITC—the ITC should defer to the PTAB. The ITC’s reticence to defer creates confusion for consumers and businesses by contradicting the PTO on patent validity and enforcing invalid patents. Deferring will aid the ITC’s statutory urgency by ensuring the ITC only issues injunctions based on valid patents and concluding cases immediately when a patent is found not valid. PTAB judges have the technical expertise to independently assess expert testimony and the legal expertise from a narrow focus on patent validity. The ITC acknowledges the PTAB as an alternative to district court, which it already defers to on decisions of patent validity. The ITC should extend this same level of respect to the PTAB.

 

Savannah Carnes: J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Technology & Communications Editor. I am thankful to Miranda Rutherford, J.D. 2020, and Noor Hasan, J.D. 2020, for their help editing this piece, and to the patent litigator who called me “strident” for making this argument, who inspired this publication.

[1] See Jason E. Stach & Jeffrey A. Freeman, District Court or the PTO: Choosing Where to Litigate Patent Validity, Finnegan (Mar./Apr. 2014), https://www.finnegan.com/en/insights/articles/district-court-or-the-pto-choosing-where-to-litigate-patent.html [https://perma.cc/9QN6-LNNP].

[2] See id.

[3] See Quinn Emanuel Urquhart & Sullivan, LLP, February 2019: ITC Treatment of IPR Decisions, JDSupra (Mar. 2, 2019), https://www.jdsupra.com/legalnews/february-2019-itc-treatment-of-ipr-65955/ [https://perma.cc/9XQ5-THSK] [hereinafter ITC Treatment of IPR Decisions] (explaining that it is unclear what deference, if any, the ITC gives to PTAB determinations of validity).

[4] Roger Allan Ford, The Uneasy Case for Patent Federalism, 2017 Wisc. L. Rev. 551, 568 (describing this balance as “delicate”).

[5] Nestier Corp. v. Menasha Corp. Lewisystems Div., 739 F.2d 1576, 1581 (Fed. Cir. 1984) (“There is a stronger public interest in the elimination of invalid patents than in the affirmation of a patent as valid[.]”).

[6] See Richard B. Klar, Ebay Inc. v. MercExchange, LLC: The Right to Exclude Under U.S. Patent Law and the Public Interest, 88 J. Pat. & Trademark Off. Soc’y 852, 858 (2006).

[7] 35 U.S.C. § 311 (2012).

[8] Quinn Emanuel Urquhart & Sullivan, LLP, Inter Partes Review and the ITC: The Benefits and Risks of Filing IPR on Patents Asserted in an ITC Investigation, JDSupra (Apr. 3, 2015), https://www.jdsupra.com/legalnews/inter-partes-review-and-the-itc-the-ben-70975/ [https://perma.cc/NX3N-C64C] [hereinafter Inter Partes Review and the ITC].

[9] 19 U.S.C. § 1337 (2012).

[10] See Inter Partes Review and the ITC, supra note 8.

[11] See Inter Partes Review and the ITC, supra note 8.

[12] See ITC Treatment of IPR Decisions, supra note 3.

[13] In Nobel Biocare Services AG v. Instradent USA, Inc., the ITC enforced an injunction based on its own validity determination, despite the PTAB’s earlier determination that the same claims were invalid. 903 F.3d 1365 (Fed. Cir. 2018). The court did this again in Arista Networks, Inc. v. Cisco Sys. See 908 F.3d 792 (Fed. Cir. 2018). Ultimately, the accused infringers had to appeal the ITC’s injunction, win at the Federal Circuit, and then wait until the patent owner failed to petition the Supreme Court for further review before the ITC finally revoked the exclusion orders in each case.

[14] See, e.g., In re Cuozzo Speed Techs., LLC, 793 F.3d 1297, 1303 (Fed. Cir. 2015) (Prost, C.J., dissenting) (“Here, Congress intended IPRs to be a viable alternative to district court adjudications of patent validity.”).

[15] 35 U.S.C. § 154(a)(1) (2012).

[16] Id.

[17] Id. § 102.

[18] Id. § 103.

[19] Id. § 101.

[20] See Brian Fung, Inside the Stressed-Out, Time-Crunched Patent Examiner Workforce, Wash. Post (July 31, 2014), https://www.washingtonpost.com/news/the-switch/wp/2014/07/31/inside-the-stressed-out-time-crunched-patent-examiner-workforce/ [https://perma.cc/YE8N-AD6S].

[21] See id.

[22] Id.

[23] 35 U.S.C. § 154.

[24] General Information Concerning Patents, U.S. Patent and Trademark Office (Oct. 2015), https://www.uspto.gov/patents-getting-started/general-information-concerning-patents [https://perma.cc/33BB-PTX6 ] (“Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.”)

[25] See Charlene M. Morrow & Dargaye Churnet, Legal FAQ: Introduction to Patent Litigation, Fenwick & West LLP, https://www.fenwick.com/FenwickDocuments/Legal_FAQ_Patent_Litigation.pdf [https://perma.cc/U5PD-9E3U] (last visited June 23, 2020).

[26] See Scott McBride, Why Patent Litigation Costs Appear to be Going Down, Law360 (Sept. 30, 2019),https://www.law360.com/articles/1200525/why-patent-litigation-costs-appear-to-be-going-down?[https://perma.cc/TKT9-9LDE].

[27] PwC, 2018 Patent Litig. Study 14 (May 2018), https://www.ipwatchdog.com/wp-content/uploads/2018/09/2018-pwc-patent-litigation-study.pdf [https://perma.cc/C36T-XJPW].

[28] See Morrow & Churnet, supra note 25, at 2.

[29] See id.

[30] See id. at 4.

[31] Holly Lance, Not So Technical: An Analysis of Federal Circuit Patent Decisions Appealed from the ITC, 17 Mich. Telecomm. & Tech. L. Rev. 243, 249–53 (2010).

[32] See Morrow & Churnet, supra note 25, at 1–2.

[33] See id.

[34] See Lance, supra note 31, at 269–70 (noting that ITC judges with technical backgrounds are more frequently affirmed on appeal, even on nontechnical issues).

[35] In 1974, ITC investigations were amended to require completion within twelve months, with an extension possible up to eighteen months for “more complicated” investigations. Fixed statutory time limits were eliminated as part of the 1994 amendments and now the statute requires completion by “the earliest practicable time.” 19 U.S.C. § 1337(b)(1).

[36] See id. § 1337.

[37] Colleen V. Chien, Patently Protectionist? An Empirical Analysis of Patent Cases at the International Trade Commission, 50 Wm. & Mary L. Rev. 63, 113 (2008).

[38] Mareesa Frederick and Douglas Cheek, Find The Best Way To End Your Section 337 ITC Investigation, Law360 (Apr. 23, 2020), https://www.law360.com/articles/1261525/find-the-best-way-to-end-your-section-337-itc-investigation[https://perma.cc/JK3U-E49G].

[39] See, e.g., Texas Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1569 (Fed. Cir. 1996) (“Congress did not intend decisions of the ITC on patent issues to have preclusive effect.”); Sapna Kumar, Expert Court, Expert Agency, 44 U. Cal. Davis L. Rev. 1547, 1557 (2011).

[40] See Kumar, supra note 39, at 1557.

[41] See Lance, supra note 31, at 250; Morrow & Churnet, supra note 25, at 2–3.

[42] Fabian Koenigbauer, PTAB by the Numbers: A Closer Look at the Most Recent PTAB AIA trial Statistics, IP Intelligence Report (Jan. 23, 2020), https://www.ipintelligencereport.com/2020/01/23/ptab-by-the-numbers-a-closer-look-at-the-most-recent-ptab-aia-trial-statistics/ [https://perma.cc/HX27-846H]; Ryan Kenny, Which Invalidity Avenue to Take: Inter Partes Review Verses Post-Grant Review, IP Watchdog (July 31, 2018), https://www.ipwatchdog.com/2018/07/31/which-invalidity-avenue-ipr-verses-post-grant-review/id=99460/[https://perma.cc/EGZ2-KTLN].

[43] Justin Oliver, et al, Is PTAB ‘Death Squad’ Just a Myth?, Intellectual Prop. Magazine 48, 48–49 (June 2015), https://www.venable.com/-/media/is-ptab-death-squadoliverberschadskyscerboipm2015.pdf [https://perma.cc/X5AX-464A].

[44] The PTAB can only hear patent validity issues under 35 U.S.C. § 102 or § 103 wherein patents or printed publications are relied on. 37 C.F.R. § 42.104 (2019).

[45] See Kenny, supra note 42.

[46] See id.; see also Inter Partes Review and the ITC, supra note 8.

[47] 35 U.S.C. § 6(a) (“The administrative patent judges shall be persons of competent legal knowledge and scientific ability[.]”); Kumar, supra note 39, at 1555 (describing ITC judges as coming “from a variety of backgrounds”).

[48] David C. Seastrunk et al., Federal Circuit PTAB Appeal Statistics–September 2016, AIA Blog (Sept. 12, 2016), http://www.aiablog.com/ptab-stats/federal-circuit-ptab-appeal-statistics-september-2016 [https://perma.cc/LRW2-PBRB] (finding that PTAB appeals were affirmed on every issue 79.65 percent of the time, and at least in part 88.5 percent of the time, from 2012 to2016).

[49] See Inter Partes Review and the ITC, supra note 8.

[50] See Lance, supra note 31, at 250.

[51] See Morrow & Churnet, supra note 25, at 2.

[52] See, e.g., Certain Three-Dimensional Cinema Systems & Components Thereof, Inv. No. 337-TA-939, Comm’n Op. at 53–56 (Aug. 23, 2016) [hereinafter Three-Dimensional]; Certain Integrated Circuits with Voltage Regulators and Products Containing Same, No. 337-TA-1024, Order No. 55 at 6 (Aug. 31, 2018) [hereinafter Integrated Circuits]; Certain Magnetic Tape Cartridges And Components Thereof, Inv. No. 337-TA-1058, Notice Of A Commission Final Determination (March 25, 2019) [hereinafter Magnetic Tape].

[53] See, e.g., Three-Dimensional, supra note 52.

[54] Compare Three-Dimensional, supra note 52 (ITC stayed its own proceedings in light of PTAB determinations of invalidity, a showing of deference) with Nobel Biocare, 903 F.3d 1365 (ITC refusing to defer to the PTAB’s determination of invalidity and instead enforcing an injunction based on the ITC’s own validity determination) and Arista Networks, 908 F.3d at 793 (same).

[55] See, e.g., Certain Network Devices, Related Software, and Components Thereof (II), Inv. No. 337-TA-945, Comm’n Op. at 9 (Aug. 16, 2017) (explaining that despite the PTAB’s invalidity determination, the patent claims remain legally valid until the PTO issues a cancellation certificate).

[56] 19 U.S.C. § 1337(b)(1); see id. (explaining that it would not defer to PTAB invalidity determination in part due to statutory urgency).

[57] Integrated Circuits, supra note 52, at 6; Three-Dimensional, supra note 52, at 53–56.

[58] Arista Networks, 908 F.3d at 793.

[59] See id.

[60] See id.

[61] See id.

[62] Nobel Biocare, 903 F.3d at 1369.

[63] Certain Large Video Matrix Display Systems and Components Thereof, Inv. No. 337-TA-75, Comm’n Action and Order at 2 (Aug. 10, 1981) [hereinafter Video Matrix].

[64] Composite Wear Components and Products Containing the Same, Inv. No. 337-TA-644, Comm’n Op. at 3–4 (Feb. 10, 2011) [hereinafter Composite Wear] (rescinding an exclusion order and a cease and desist order in light of district court’s invalidity decision, pending appeal).

[65] SSIH Equip. S.A. v. U.S. Intern. Trade Comm’n., 718 F.2d 365, 370 (Fed. Cir. 1983) (appealing the ITC decision in Video Matrix, supra note 63, at 2).

[66] See Three-Dimensional, supra note 52, at 60.

[67] Magnetic Tape, supra note 52, at 63 n.23.

[68] See About the USITC, United States Int’l Trade Comm’n, https://www.usitc.gov/press_room/about_usitc.htm[https://perma.cc/M6TW-3XBW] (last visited Jun. 24, 2020); New to PTAB, United States Patent and Trademark Officehttps://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/ptab-inventors [https://perma.cc/K6P3-684A] (last visited Jun. 24, 2020).

[69] Kumar, supra note 39, at 1555 (describing ITC judges as coming “from a variety of backgrounds”).

[70] See 35 U.S.C. § 6(a) (“The administrative patent judges shall be persons of competent legal knowledge and scientific ability[.]”).

[71] Lance, supra note 31, at 245.

[72] BTG Int’l Ltd. v. Anmeal Pharm. LLC, Nos. 2019- 1147, Invited Brief for the Director – U.S. Patent and Trademark Office as Amicus Curiae in Support of Neither Party, at 8 (Fed. Cir. Feb. 1, 2019), ECF No. 123.

[73] See Seastrunk, supra note 48.

[74] Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372 (2018).

[75] Certain Personal Computer and Consumer Electronic Convergent Devices, Components Thereof, and Products Containing Same, Inv. No. 337-TA-558, Order No. 6 at 8 (Feb. 7, 2006) [hereinafter Personal Computer] (granting stay pending reexamination).

[76] Id.

[77] Nobel Biocare, 903 F.3d at 1369.

[78] Arista Networks, 908 F.3d at 793.

[79] Personal Computer, supra note 75, at 8.

[80] Cardinal Chem. Co. v. Morton Intern., Inc., 508 U.S. 83, 84 (1993).

[81] Ninestar Tech. Co., Ltd. v. Int’l Trade Comm’n., 667 F.3d 1373, 1380 (Fed. Cir. 2012).

[82] See id.

[83] Nestier Corp., 739 F.2d at 1581.

[84] Id.

More From California Law Review Online

The Single Transferable Vote and Proportional Representation in the People’s House

To achieve adequate representation, House elections should strive to achieve as few distortions of the popular will as possible, while maintaining identifiable, local representation. Most U.S. elections are first-past-the-post, also known as single-member district plurality systems (SMDP). SMDP produces identifiable local representatives but fails to accurately reflect voter sentiment. Instead, House elections should implement a single-transferable vote system (STV) within multimember districts. […]

Unmarked Agents, Accountability, and the Anti-Commandeering Doctrine

No state agents have been impressed into service. But the anti-commandeering doctrine is based on a theory of political accountability, which is undermined by these unmarked federal agents. Thus, while there is no formal commandeering happening, the federal government’s use of unmarked agents creates exactly the kind of confusion in the lines of political accountability that the anti-commandeering doctrine is designed to prevent. […]

Heroizing Restorative Justice: Steven Universe and Rewriting Justice Narratives through Superhero Cartoons

Steven Universe, a children’s cartoon that follows the lives and adventures of the half-human, half-alien boy Steven Universe and his family of intergalactic space aliens, “the Crystal Gems,” upends these narratives, instead modeling restorative justice principles—empathetic, dialogue-based communication, non-punitive conflict resolution, and communal healing—for children. […]