This post discusses three cases that suggest a reversal of the old adage 'better late than never.'
Case 1
Polaris Innovations Ltd. V. Brent, No. 2019-1483, -1484 (Fed. Cir. Sept. 15, 2022), in which the Court of Appeals for the Federal Circuit ('the Federal Circuit') affirmed the Patent Trial and Appeal Board's ('the Board's') Final Written Decisions of unpatentability for IPR2017-01500 and IPR2017-00901.
Background
The case involved two IPR petitions filed by NVIDIA against two Polaris patents. The Board issued final written decisions holding all challenged claims unpatentable. After appealing both decisions, the parties settled, and the USPTO intervened in the appeals to defend the Board's decisions. The Federal Circuit vacated and remanded the decisions in light of Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) (Arthrex I). On remand, the Board administratively suspended the IPRs pending potential Supreme Court action, and while suspended, the parties filed a joint motion to terminate the proceedings. While the IPRs were on remand, the Supreme Court decided United States v. Arthrex, Inc., 141 S. Ct. 1970 (Arthrex II), vacating the Federal Circuit's decision in Arthrex I. As a result, the Board's final written decisions in the two IPR proceedings were reinstated and led to a dispute regarding the joint motion to terminate that was filed during remand. Polaris argued that the Federal Circuit should vacate and remand for the Board to grant termination, but the USPTO opposed and suggested a...
