On Monday, the PTAB made clear that the ultimate outcome of the Fintiv rule championed by Director Iancu is the elimination of inter partes review (IPR) as a viable alternative to challenging patents in litigation. RAI sued Philip Morris on April 9th, 2020. Less than a month later, on May 8th, 2020, Philip Morris filed a petition for IPR against three of the asserted patents. (When I was in practice, I worked on a number of IPRs. Filing a petition in less than a month is an impressively diligent feat—typically it takes six to nine months to file a petition.)
Monday, the PTAB denied two of the three petitions for IPR. (The third petition was instituted, despite being in the exact same procedural posture, without any discussion of these issues.)
