Fintiv rule isn’t used in practice. Courts and PTAB have tried to fix duplication but it hasn’t worked.
Armond et. al. 11-8-2023. Michelle Armond is an intellectual property trial attorney litigating patents, trademarks, and trade secrets. IAM 1000 lauded her as “brilliant” and an “outstanding lawyer who ranks among the best PTAB specialists nationwide.” Lamar Smith is senior consultant and former member of Congress. Christopher Andrew Coons is an American lawyer and politician serving as the junior United States senator from Delaware since 2010. “Senate Judiciary Subcommittee on Intellectual Property Holds Hearing on Patent Trial and Appeal Board Reforms”, CQ Transcriptions. https://www.judiciary.senate.gov/committee-activity/hearings/reforming-the-patent-trial-and-appeal-board_the-prevail-act-and-proposals-to-promote-us-innovation-leadership || 苗
So there's two thoughts right now. So what the district courts sometimes are doing is they're staying the case to prevent that duplication and the PTAB has also adopted policies where they will discretionary deny if they feel that the district court is going to hear the issue. First and a jury will decide validity.
But both of these approaches are not implemented systematically and they've been very controversial. I mean, nobody's really happy with any of this. So the proposed amendment in the bill to section 315 which provides that if the IPR is instituted, a party can't maintain the same challenge in another proceeding that would absolutely reduce that duplicative litigation cost.
And the Second Amendment, which I'll highlight, which we've already discussed is the burden of proof. So right now at the PTAB, which is an administrative agency, the burden of proof is clear and -- or a preponderance of the evidence and the bill would change that to clear. And convincing evidence, which is the standard that the jury is supposed to apply in the district court.
And this will solve the problem that the Supreme Court recognized in Cuozzo [Ph] which is that in the system under the AIA you have these two different standards. So you can have the PTAB and the district court and they can reach different results on the same patent. So I'd like to thank the committee for carefully considering patent reform at this junction and I welcome any questions you may have.