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ARTICLE · 02 SEPTEMBER 2018

A Truism That Once Again Bears Repeating: Don't Wait Until The Last Minute

Jones Day
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But ATI disputed this, arguing that it served the complaint by mail on January 30, 2017.

United StatesIntellectual Property
Emily J. Tait
Emily J. Tait
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A recent decision by the Patent Trial and Appeal Board ("PTAB") denying a petition for inter partes review serves as a stark reminder of the oft-repeated truism, "don't wait until the last minute."  See VIZIO, Inc. v. ATI Techs. ULC, Case IPR2018-00560 (August 24, 2018) (Paper 7).

The PTAB found that Petitioner VIZIO's petition was time-barred under 35 U.S.C. § 315(b) because the petition was filed more than one year after VIZIO was served with a complaint alleging infringement of the patent.  VIZIO filed its petition on February 1, 2018, exactly one year after it received ATI's triggering complaint for patent infringement.  VIZIO contended that its receipt date of February 1, 2017 was the service date.  But ATI disputed this, arguing that it served the complaint by mail on January 30, 2017.

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