The fight goes on to invalidate claims until the patent owner loses and the claims are invalidated.

Recently the United States Court of Appeals for the Federal Circuit issued a decision in Nobel Biocare Srvcs. AG v. Instradent USA, Inc., which makes one wonder whether all U.S. patents are invalid, or will eventually become invalid.

Nobel Biocare owns U.S. Patent 8,714,977 (“the ‘977 patent”), which relates to dental implants. On October 27, 2014, the U.S. International Trade Commission (“ITC”) instituted an investigation of Instradent USA, Inc.’s (“Instradent”) Drive CM dental implants based on a complaint filed by Nobel alleging violations of 19 U.S.C. § 1337 by reason of importation of an implant product that infringes the ‘977 patent and U.S. Patent 8,764,443. On May 11, 2016, the ITC issued a Commission Opinion finding Instradent failed to show by clear and convincing evidence that the ABT Catalog was prior art under § 102(b) for claims 1-5 and 19 of the ‘977 patent. In 2017, the Federal Circuit affirmed.

The claims 1-5 and 19 of the ‘977 patent were finally adjudicated as being valid by the Federal Circuit, with Instradent failing to demonstrate invalidity.

On August 20, 2015, Instradent petitioned for IPR of claims 1-7, 9, and 13-20 of the ‘977 patent. The PTAB, using the lower preponderance of the evidence standard applicable to inter partes review challenges, found that the ABT Catalog was prior art and that the claims of the ‘977 patent were invalid under 35 U.S.C. § 102(b). The Federal Circuit affirmed the PTAB on September 13, 2018.

The claims 1-7, 9, and 13-20 of the ‘977 patent have been adjudicated as being invalid, with Instradent demonstrating them to be invalid.

Thus, the absurd result is now that claims 1-5 and 19 of the ‘977 patent have been both finally adjudicated by the Federal Circuit as both being valid and invalid.

What does this mean? It suggests several things.

First, this case very clearly demonstrates the ridiculousness associated with having different standards of proof in different fora. Those who opposed the different standard for invalidating claims at the Patent Trial and Appeal Board (PTAB) said this would happen, and here we see the absurd result. Even Chief Justice John Roberts seemed to appreciate the likelihood that this type of absurd result would happen, during oral arguments in Cuozzo, although it didn’t lead him to do anything other than observe that this “fix” is extraordinary.

Second, this case demonstrates that nothing is final until the patent owner loses. When the patent owner wins there is no finality. There is no res judicata or collateral estoppel or quieted title. The fight goes on to invalidate claims until the patent owner loses and the claims are invalidated.

Third, this case demonstrates the superiority of the USPTO and the PTAB. While this astonishing result occurred to overrule an ITC final decision that was affirmed by the Federal Circuit, the same can and will happen with respect to federal district courts. The subjugation of Article III courts to the power of an agency is beyond breathtaking.

Finally, this case demonstrates that decisions affirming the validity of patent claims by the Federal Circuit are nothing more than advisory opinions. Decisions affirming validity of patent claims are merely a preliminary round in a fight that will last until the patent claims are all finally invalidated.

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