Anita Varma and Chuck Larsen, White & Case
6 December 2017Big Pharma

LSPN Europe 2017: PTAB facing criticism over political independence

A lawyer speaking at the Life Sciences Patent Network (LSPN) Europe conference has said the US Patent Trial and Appeal Board (PTAB) has come under fire for not being politically independent.

Anita Varma, partner at White & Case, said there are concerns that “if the PTAB wants a particular outcome, the judges can get the decision they’re looking for”.

She was speaking at the event in London today, December 6.

Varma described the practice as “panel stacking”, adding that the US Supreme Court is scrutinising the issue.

She started her presentation by saying it has been a “rocky road” for the PTAB since its foundation in 2012 and that there has been much controversy.

The PTAB was the most active venue for US patent disputes in 2016, she said, adding that more than 10,000 petitions had been filed by June 2017.

From September 2012 to September 2017, the majority of inter partes reviews (IPRs) filed covered the electrical/computer field (59%), compared to 11% in the biopharma industry, Varma noted. That figure for biopharma has increased steadily since 2012, she added.

Posing the question whether the PTAB is a “death squad” (a phrase coined by Randall Rader, former chief judge of the US Court of Appeals for the Federal Circuit), she said it has been harder for petitioners to invalidate life sciences patent claims.

One reason is that it’s harder in such cases to show non-obviousness, “so life sciences companies did well”, she said.

Varma discussed what the PTAB is mainly used for, saying that companies will often use it to “shoot down” large patent portfolios owned by competitors, as well as strengthening non-infringement defences.

She finished by discussing the Oil States Energy Services v Greene’s Energy Group case, which is pending at the US Supreme Court. The case will determine whether the IPR is constitutional.

Varma said it is difficult to predict how the court will rule. However, she noted that in the recent oral hearing, some of the justices analogised patent rights to land rights, asking whether administrative judges should be able to take away a patent right (an investment) from an inventor.

Varma co-presented with her colleague Chuck Larsen, also a partner at White & Case.

The LSPN conference is being hosted by Life Sciences IP Review.

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