Category Archives: Blog

A defendant served with a patent infringement complaint typically has 21 days to respond under Fed. R. Civ. P. 12(a)(1)(A)(i), and the choice of forum, defenses, and timing is governed by the interaction of Rule 12, the patent venue statute at 28 U.S.C. § 1400(b), the local patent rules of the chosen district, and the one-year IPR clock under 35 U.S.C. § 315(b). Each path forecloses some defenses and preserves others; the first-month decisions are strategic, not procedural, and they shape the next two years of the litigation.
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A Markman hearing is a federal pretrial proceeding at which the district judge construes the disputed terms of a patent’s claims as a matter of law. The name comes from Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (unanimous; claim construction is a question of law allocated to the judge), in which the Supreme Court held that claim construction is “exclusively within the province of the court.” Id. at 388–89. The judge’s constructions govern summary judgment and bind the jury’s infringement analysis at trial. Appellate review runs under Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318 (2015): de novo on the ultimate legal construction, clear-error on subsidiary fact-findings.
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The Patent Trial and Appeal Board (PTAB) is the administrative tribunal within the U.S. Patent and Trademark Office that adjudicates contested post-grant patent validity proceedings and ex parte appeals from examiner rejections. Created by the America Invents Act of 2011, Pub. L. No. 112-29, § 7, the Board is an executive-branch administrative tribunal within the USPTO, staffed by Administrative Patent Judges (APJs) sitting in three-judge panels under 35 U.S.C. § 6; the appellate path runs to the U.S. Court of Appeals for the Federal Circuit under 35 U.S.C. § 319 and § 141, with a 63-day filing window under 37 C.F.R. § 90.3. Continue reading…