One of the most common responses to being sued for patent infringement is a petition to the USPTO’s Patent Trial and Appeal Board (PTAB) challenging the validity of the patent. To avoid duplication of effort, either the Board or the tribunal can defer to the other. According to a recent decision, the U.S. International Trade Commission (ITC) will not defer to the PTAB in such situations. In Certain Automated Storage and Retrieval Systems, Robots, and Components thereof (337-TA-1228), Judge Lord emphatically confirmed that in order to conclude its investigations “at the earliest practicable time,” the ITC should not stay a Section 337 investigation in view of an Inter Partes Review (“IPR”) proceeding at the PTAB, even where this might deprive an accused infringer of the opportunity to have the PTAB review an asserted patent prior to the issuance of an Exclusion Order.
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