Litigating in Parallel: Do’s and Don’ts for Concurrent PTAB, ITC and District Court Litigation

Litigating in Parallel: Do’s and Don’ts for Concurrent PTAB, ITC and District Court Litigation

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The creation of the Patent Trial and Appeal Board (PTAB) forever changed patent enforcement proceedings in the United States. While the PTAB was advertised by supporters as an alternative to expensive patent litigation, the truth has been very different. Over 80% of patent challenges filed at the PTAB relate to disputes that are ongoing in federal district court, making the PTAB an expensive hurdle to patent enforcement proceedings for most patent owners. Adding a layer of complexity to what is a three-headed patent enforcement monster is the International Trade Commission, which is not able to issue monetary damages but does have the authority to enjoin the importation of infringing products into the United States if the patent owner is able to establish the existence of a domestic industry. Often a patent enforcement dispute is played out in all three tribunals at the same time.

This panel will discuss current best practices relating to what patent owners and alleged infringers should do, and not do, when they are engaging in parallel litigation.