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ARTICLE · 01 APRIL 2015

Threshold Issues: IPR Not Derailed By Unidentified D/B/A Name Or Prior ANDA Certification

McDermott Will & Emery
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Addressing threshold jurisdictional issues of a petition for inter partes review, the USPTO Patent Trial and Appeal Board determined that a d/b/a name does not create a legal entity "separate from the underlying corporate entity" that should have been named as a real party in interest.

United StatesIntellectual Property
Nathan Smith
Nathan Smith
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Metrics, Inc. v. Senju Pharmaceutical Co., Ltd.

Addressing threshold jurisdictional issues of a petition for inter partes review (IPR), the U.S. Patent and Trademark Office's (USPTO) Patent Trial and Appeal Board (PTAB or Board) determined that a d/b/a name does not create a legal entity "separate from the underlying corporate entity" that should have been named as a real party in interest and that a Paragraph IV certification in an Abbreviated New Drug Application (ANDA) with the U.S. Food and Drug Administration (FDA) did not trigger a time bar to the IPR petition because the certification was not a functional equivalent to a declaratory judgment action. Metrics, Inc. v. Senju Pharmaceutical Co., Ltd., Case No. IPR2014-01041 (PTAB, Feb. 19, 2015) (Obermann, APJ.).

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