PTAB Bar Association files amicus brief in Google LLC v. VirtaMove, Corp.

PTAB Bar Association files amicus brief urging Supreme Court to grant certiorari in Google LLC v. VirtaMove, Corp.

The PTAB Bar Association has filed an amicus curiae brief in Google LLC v. VirtaMove, Corp., et al., No. 25-1230, urging the U.S. Supreme Court to grant the petition for a writ of certiorari and reverse the Federal Circuit’s decision. A copy of the brief is available at this link.

In its amicus brief, the PTAB Bar Association explains why the USPTO's recently implemented "settled expectations" doctrine, under which the Office denies institution of inter partes review for patents older than approximately six years without any analysis on the merits, exceeds the Office's statutory authority under the America Invents Act (AIA). The Association maintains that by enacting the AIA, Congress deliberately designed inter partes review to be available throughout a patent's entire term and imposed no age-based time bar. The brief also explains why the USPTO, as an administrative agency, should not implement a quasi-statute of limitations that Congress declined to enact. The brief further advocates that, contrary to the Federal Circuit's recent holdings, judicial review remains available to police the outer statutory boundaries of the USPTO’s discretion, as in previous decisions including Loper Bright Enterprises v. Raimondo, Cuozzo Speed Technologies, LLC v. Lee, and SAS Institute Inc. v. Iancu.

As discussed in the amicus brief, the Association's members, who represent both patent owners and patent challengers, have documented that the USPTO’s recent "settled expectations" doctrine has destabilized rather than stabilized the U.S. patent system. The USPTO’s implementation of that doctrine shields invalid patents from efficient administrative challenge, disproportionately benefits non-practicing entities and incumbents with large and aged portfolios, and unfairly harms smaller and newer companies that depend on accessible, cost-effective patent challenges to operate and innovate. As the only professional organization dedicated solely to practice before the PTAB, the Association believes that the U.S. Supreme Court’s review is urgently warranted in this case to preserve the inter partes review process that Congress designed more than a decade ago.