As a follow up on my post on the new PTAB bifurcated process on April 14, PTAB recently denied several dozen US patent validity challenges before consideration of merit.
Professor Crouch's article, Timing is Everything: PTAB’s Renewed Reliance on Litigation Timelines and Patent Longevity covers this in detail.
I haven't read the PTAB denials, but an affected patent owner might check out the winning patent owner papers (e.g., Carmichael IP's papers). Professor Crouch suggests the denials are primarily based on (1) if the trial in district court is scheduled before PTAB's projected final written decision; and (2) a patent owner's settled expectation when US patent has not been challenged for years.
I expect a fight on the legitimacy of this denial before merits approach. The litigation timeline rationale seems defensible as challengers bear the blame for not filing an IPR "timely" in PTAB allowing patent owners a jury trial. In contrast, a patent owner's settled expectation rationale seems subject to factual dispute on what circumstances justify it.
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