Apple, Google, others lose court challenge to patent review policy - Reuters

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A 3D printed Google logo is placed on the Apple Macbook in this illustration taken April 12, 2020. REUTERS/Dado Ruvic

• Tech companies said rule reducing reviews undermines patent system
• Court says PTO decisions on instituting review can't be appealed

(Reuters) - A federal judge in California tossed a lawsuit brought by big tech companies including Apple and Google over a U.S. Patent and Trademark Office policy that reduced the number of patent disputes it considers.

U.S. Supreme Court precedent prevents the companies from challenging an internal PTO rule that allows the patent office's administrative judges to deny more bids for inter partes reviews (IPRs), U.S. District Judge Edward Davila said.

The IPR process, which allows parties to challenge the validity of patents at the PTO's Patent Trial and Appeal Board, is popular with major tech companies and others often targeted with patent infringement lawsuits as an efficient way to head off the claims.

Rejections of IPR petitions have been rising in part because of an internal PTO rule giving PTAB judges discretion to deny review when related court litigation has made more progress, among other things.

Apple Inc, Google LLC, Cisco Systems Inc, and Intel Corp sued the PTO last year, alleging the rule undermined the central role IPRs have in "protecting a strong patent system" and violated federal law.

The PTO asked the court to dismiss the case, arguing, among other things, that its decisions on whether to grant IPRs can't be appealed.

Davila agreed, citing a 2016 Supreme Court ruling that decisions to institute an IPR aren't appealable and a 2020 high court ruling that bars review of "closely related" PTO determinations.

Davila said he could not "deduce a principled reason" why that precedent "would not extend to the Director's determination that parallel litigation is a factor in denying IPR."

Google spokesperson José Castañeda said the company was disappointed, but will "continue to work to ensure" that the IPR process "improves patent quality," "reduces unnecessary litigation costs," and helps maintain "an efficient, streamlined and strong patent system."

Intel and the PTO declined to comment. The other companies didn't immediately respond to a request for comment.

Apple, Cisco, and Intel's attorneys Mark Selwyn and Catherine Carroll of Wilmer Cutler Pickering Hale and Dorr also didn't immediately respond to a request for comment. Daniel Shvodian of Perkins Coie, who represents Google, declined to comment.

The case is Apple Inc v. Iancu, U.S. District Court for the Northern District of California, No. 5:20-cv-06128.

For Apple, Cisco, and Intel: Mark Selwyn and Catherine Carroll of Wilmer Cutler Pickering Hale and Dorr

For Google: Daniel Shvodian of Perkins Coie

For Edwards: John Sganga of Knobbe Martens Olson & Bear

For the PTO: Gary Feldon of the U.S. Department of Justice

Read more:

Apple, Google team up to sue patent office over 'invalid' policy change

Senators Leahy, Cornyn introduce bill to 'restore' PTAB review process

Senator Leahy announces plans for legislation to change PTAB review

Supreme Court rejects challenge to patent review process

Blake Brittain

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com

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