Ethicon Files Petition for Certiorari Challenging PTAB Practices

September 26, 2016 – Ethicon Endo-Surgery, Inc. filed a petition for a writ of certiorari, challenging whether the America Invents Act permits the Patent Trial and Appeal Board (“the Board”) instead of the Director to make inter partes review (“IPR”) institution decisions. Ethicon’s case began before the Board, where its patent, U.S. Patent No. 8,317,070, was the subject of a petition for inter partes review filed by petitioner Covidien LP. Trial was instituted, and Ethicon’s patent was invalidated in a Final Written Decision by the Board. Ethicon appealed to the Federal Circuit, and Michelle K. Lee, Director of the U.S. Patent and Trademark Office, intervened. The Federal Circuit upheld the Board’s final written decision. The patent-at-issue is U.S. Patent No. 8,317,070, titled “Surgical stapling devices that produce formed staples having different lengths.”

By: Katherine E. Adams

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