The USPTO recently made significant changes to its guidance on discretionary denials in inter partes review proceedings. Acting Director Stewart rescinded the former Vidal Guidance, restoring the precedence of the Fintiv and Sotera decisions, which has sparked wide discussion among legal practitioners. Chief Judge Boalick subsequently issued guidance on how these changes will affect petitions for post-grant reviews. Notably, these changes will only impact cases that have not yet reached a determination on institution. The implications for what constitutes extraordinary circumstances for review remain uncertain, creating an atmosphere of ambiguity.
The USPTO's rescission of the Vidal Guidance restores the applicability of Fintiv and Sotera precedents without modification, impacting current and future inter partes review proceedings.
The Boalick Guidance provides clarity for handling petitions for post-grant reviews, especially those filed post-rescission, establishing new frameworks for institutional decisions.
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