When Will The ITC Honor A PTAB Finding Of Invalidity?

Law360, June 21, 2018 5:32 PM EDT-- We previously discussed in Law360 how the U.S. International Trade Commission and the Patent Trial and Appeal Board interacted as collateral administrative agencies independently and simultaneously assessing patent validity. As a general rule, the ITC has given little to no deference to PTAB decisions, assessing patent validity in the same manner it did prior to the formation of the PTAB. However, recent decisions by the ITC seem to throw a wrinkle into this lack of deference. A recent opinion from the Federal Circuit appears to affirm the ITC’s seemingly new “middle ground” approach to PTAB decisions. This article provides an update on the interplay between potentially conflicting determinations of invalidity by the ITC and the PTAB, and the circumstances for resolving those potential conflicts.