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Bradley Olson
is a partner with Barnes & Thornburg in the firm's Washington, D.C. office, and is a member of the firm’s Intellectual Property Department. For more than 20 years, Mr. Olson has been involved in virtually all aspects of patent litigation, including the handling of discovery, motion, and trial practice, retaining experts and consultants for trial, coordinating jury focus groups, and preparing witnesses for deposition and trial testimony. He has prepared and negotiated complex intellectual property rights transfer agreements, including patent litigation settlements, patent licenses, and computer software and hardware agreements. Brad also has experience in virtually all aspects of patent and trademark litigation in U.S. District Courts, ITC Section 337 hearings, and patent litigations in the U.S. and in several European countries. For more information or to contact Mr. Olson please visit his firm profile page.
Recent Articles by
Will the Supreme Court Keep Kicking the Can or Stop It by Addressing Arthrex?
On April 6, Arthrex, Inc. filed a petition for certiorari in the U.S. Supreme Court on two discrete patent issues. Notably, one of the issues raised in Arthrex’s April 6 petition is likely to prove especially compelling to the Supreme Court, and may well tilt the balance for it being granted, as it provides an inroad to a constitutional Appointments Clause issue that is central to several other petitions by various parties on the same issue. Arthrex is widely anticipated to file another petition for certiorari on this issue stemming from the Court of Appeals for the Federal Circuit’s recent denial of a rehearing en banc in Arthrex v. Smith & Nephew wherein the main issue had been the Federal Circuit’s ruling that Patent Trial and Appeal Board (PTAB) judges were indeed unconstitutionally appointed under the America Invents Act (AIA), but that the Federal Circuit’s field expedient blue penciling of the underlying statutes corrected any constitutional flaws nunc pro tunc.
Practitioner Strategies for Living in a Post-Cuozzo World
It seems difficult to reconcile the Respondent’s principal argument that two standards should still apply: that is, that the PTAB should be permitted to continue applying its policy-derived broad BRI standard for construing patent claim scope in Congressionally mandated “adjudicative” IPR proceedings while still using the lower preponderance of the evidence standard provided under 35 U.S.C. § 316(e). The notion that the USPTO may “infer” such intent to also apply the BRI in the absence of any express guidance from Congress was weak, at best. Especially because having two such claim construction standards applied by Article III courts and the ITC on the one hand, and the USPTO’s unilateral application of an “examination” claim construction standard in an intended “adjudication” setting on the other hand, has already led to inequitable and presumably non-appealable results.