Still No Shenanigans: Fed. Circ. Keeps Review Bar High

Director Will Milliken spoke to Law360 about the Federal Circuit’s recent rejection of all mandamus petitions asking it to consider the way U.S. Patent and Trademark Office leadership is evaluating institution decisions at the Patent Trial and Appeal Board.

Based on the range of mandamus denials, Milliken said a request would have to “show a pretty blatant violation of some freestanding constitutional provision.”

Milliken stated that both sides of the debate around discretionary denials have merit. “Reasonable people can certainly have differing opinions on how the discretion to deny IPRs or PGRs should be exercised,” he said. “Reasonable people can have good-faith disagreements on what considerations should be relevant and what considerations shouldn’t be relevant. Reasonable people can have disagreements on how often or not often IPRs should be used.”

“What this most recent round of decisions makes clear is that the policy discussion is going to happen at the agency level,” Milliken added.