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Attempts to Appeal Institution Decision Is SIPCOed

Reinforcing the impact of the Supreme Court of the United States' 2019 decision in Thryv v. Click-to-Call, the US Court of Appeals for the Federal Circuit reiterated that the Patent Trial and Appeal Board's threshold determination as to whether it will institute a proceeding under the America Invents Act (AIA), in this instance a Covered Business Method (CBM) review, is not appealable because it is closely tied to the institution decision. cxLoyalty, Inc. v. Maritz Holdings Inc., Case Nos. 20-1307, -1309 (Fed. Cir. Feb. 8, 2021) (Prost, C.J.) cxLoyalty petitioned for CBM review of a patent owned by Maritz. The patent relates to a system and method for permitting a loyalty program customer to redeem loyalty points for rewards offered by vendors without human intervention. A participant (i.e., a customer) uses a graphical user interface (GUI) to communicate with a web-based vendor system (e.g., an airline reservation system). An application programming...

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USPTO Proposes New Rules for Post-Grant Proceedings

The United States Patent and Trademark Office (USPTO) proposed changes to the rules of practice for instituting review on all challenged claims or none in inter partes review (IPR), post-grant review (PGR) and the transitional program for covered business method patents (CBM) proceedings before the Patent Trial and Appeal Board (PTAB) in accordance with the 2018 Supreme Court decision in SAS Institute Inc. v. Iancu, IP Update, Vol. 21, No. 5 (SAS). Additionally, the USPTO proposed changes to the rules to conform to the current standard practice of providing sur-replies to principal briefs and providing that a Patent Owner response and reply may respond to a decision on institution. The USPTO further proposed a change to eliminate the presumption that a genuine issue of material fact created by the Patent Owner’s testimonial evidence filed with a preliminary response will be viewed in the light most favorable to the petitioner for purposes of deciding whether...

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