As a follow up on my post on the new PTAB bifurcated process on April 14, PTAB recently denied several dozens US patent validity challenges before consideration of the merit.
Professor Crouch's article, Timing is Everything: PTAB’s Renewed Reliance on Litigation Timelines and Patent Longevity covers this in more detail.
I haven't read the denials yet, but might check, for example, Carmichael IP's papers, which have succeeded several times. For now, Professor Crouch suggests the denials are primarily based on (1) if the scheduled trial date in district court is before the PTAB projected final written decision date; and/or (2) the patent owner's settled expectation when US patent was not challenged for years.
I expect a protracted fight on the legitimacy of this denial before merits approach. The litigation timeline rationale seems defensible as challengers bear the blame if patent owners get a jury trial, while the patent owner's settled expectation rationale seems vulnerable to arguments as to how many years.
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