Eric Frank
94 Geo. Wash. L. Rev. 1274
Congress created the Patent Trial and Appeal Board (“PTAB”) to serve as a cheaper and more efficient alternative to district court patent litigation, but it mistakenly relied on district courts’ voluntary stays of their own proceedings. In the most popular patent venues, courts routinely refuse to grant such stays, undermining the PTAB’s role as an alternative and creating a parallel track of duplicative proceedings. In response, various U.S. Patent and Trademark Office Directors have attempted to mediate this tension through a series of discretionary denial policies that, in practice, often defer to district courts rather than displace them. This Essay argues that none of these approaches has enabled the PTAB to operate as a viable alternative forum for resolving patent validity disputes. Yet the discretionary denial authority itself remains a potent policy lever that, if calibrated correctly, could finally align the PTAB with Congress’s original vision.
