Between the precedential Fintiv decision in March of 2020 and Director Vidal’s Guidance Memo regarding the application of Fintiv in June of 2022, the discretionary denial rates of inter partes review (IPR) institution decisions under 35 U.S.C. § 314(a) plummeted from 40-50% to 11-16%. Coupled with the order issued by the Chief Judge of the Western District of Texas in July of 2022 declaring that all new patent cases filed in the Waco Division will be randomly assigned among the 12 judges in the district, the substantial decline in denials based on Fintiv in 2022 was not surprising. Now, amid speculations that Fintiv denial rates will increase once again, the USPTO recently announced a set of proposed rules on discretionary denial practice in an Advance Notice of Proposed Rulemaking (ANPRM).
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